Public Bill Committee

[John Bercow in the Chair]

Clause 41

Attendance notice: description of education or training

Amendment moved [this day]: No. 164, in clause 41, page 22, line 33, after ‘person’, insert
‘having regard to a person’s age, ability, aptitude and needs (if any) for personalised support and personalised learning opportunities’.—[Mr. Laws.]

David Laws: Good afternoon, Mr. Bercow. May I welcome you to the Chair of the Committee? It has been noted that either you are a glutton for punishment, or Mr. Bayley has deserted us. We are not sure whether this reflects enthusiasm on your part or reticence on his.
In any case, we left this morning’s sitting at clause 41, when I was mentioning that the amendment is inspired and supported by the National Union of Teachers. The last time I moved an amendment that was supported by the NUT we had a tremendous triumph when the Government crumbled in the face of the force of the argument and acknowledged that it had to be accepted. I think that that is the only concession that the Minister has made so far on the Bill. We look forward to seeing that in the future.
I am optimistic, therefore, at this final stage of the week, that we might also persuade the Minister to accept this amendment, which is an addition to clause 41(5) that would strengthen the responsibilities of local authorities to identify individual needs and ensure that they are provided. In particular, the amendment would ensure that a local authority has to have regard to the
“age, ability, aptitude and needs...for personalised support and personalised learning”
of the young person in question.
This morning, I also referred to a helpful letter that the Minister wrote to me on 13 February—I understand that it will be copied to members of the Committee—in response to the undertaking that he made at the evidence session on Tuesday 29 January to write to the Committee and talk, prior to guidance being issued, about the Government’s attitude to young people who would find it difficult to comply with the responsibility to be in education or training. In one sense, the Minister’s letter might not be regarded as directly relevant to the amendment, because it deals primarily with the circumstances in which an attendance panel would not insist upon a young person being in education or training. However, I would like to relate that directly to the amendment and to the requirement that there should be a provision of support for young people, because the Minister’s aspiration, as he has already told us, is that in all but a minority of cases, young people should be in education or training or some other setting.
Therefore, we are seeking to discover two things in that regard. First, we want to know the extent to which there will be a clear responsibility on local authorities to ensure that the education and training relates very much to the young person’s needs and circumstances, and that that includes proper support for their personal needs. Secondly, we are seeking to discover the extent to which the Minister will be willing to envisage the type of fourth-way option or gateway option that some of us have talked about during the Committee’s proceedings and that many of the outside lobby groups have also talked about. I have in front of me a note from Fairbridge, which has given evidence to the Committee and has been talking about a gateway phase to re-engage the most difficult to reach.
The letter that the Minister sent to me on 13 February indicated that he accepts that
“there will be young people who temporarily, or for a longer time, cannot in practice participate due to their individual circumstances.”
He also mentioned the need to provide the personalised support that will help young people to be in education and training. He usefully documents a list of the types of characteristics that might cause an individual to need support services or potentially not to have to comply with the attendance panel. He mentioned homelessness, health problems, addiction, the nature and timing of the courses being studied, young parents and people with caring responsibilities. Although those may be reasons for a young person not to have the education and training responsibility placed upon them by the attendance panel, they could also be characteristics that should be taken into account in the clause in providing for personalised support.
Those characteristics could also lead to a fourth way that is not covered explicitly in the Bill, but upon which I would like to test the Minister’s mind yet again. That option is to have personalised support that would in no sense meet most people’s understanding of an education or training setting. These clauses and the amendments that we discussed under clause 40 are predicated on the basis that people will be in a formal education and training setting and that their personal support needs will be moulded around that.
The Minister acknowledged in our earlier exchanges that the Government might be willing to allow people to be not in education and training settings, but in some form of supported setting that would meet their needs prior to them being able to access education and training. We do not know whether the Government are willing to translate that good intention into practice. How these support needs will be met is in the hands of the guidance that will be issued later. That will show how flexible the Government are and whether they will allow people to be not in the formal education and training institutional environments referred to in these clauses, but in the other settings that were envisaged by the outside groups and voluntary bodies that gave evidence to us.
I do not expect the Minister to deal with the specific opt-out issues that were identified in his letter in relation to the clause because they relate to other clauses. However, I would like him to confirm that for young people with high support and personal needs, the Government have in mind that there should be at least three options other than going before the attendance panel and being criminalised. First, they could be in the type of education or training setting envisaged in the Bill, but with the support that they require framed around their individual needs, as envisaged in the amendment. That option is the Government’s core desire for young people with great vulnerabilities.
Secondly, there is the possibility that the Minister raised in his letter of 13 February, that some young people with very acute needs might not be in any setting whatsoever. Thirdly, there is the other possibility that I am asking the Minister to comment on because it is relevant to the issue of young people’s support needs. I am asking whether there could be another option between doing nothing and being criminalised and having personal support delivered in an education and training setting, which would enable providers with expertise in this area to be involved. That could be a drug rehabilitation centre where there is nothing that would be regarded as accredited education or training, but where the young person would be in a setting that is dealing with a personal problem to enable him or her to go back into education or training.
This is one of the places in the Bill where we can explore with the Minister not only whether the right sensitive support will be available for young people in education and training, but whether such a different setting is envisaged. Given that we were so successful with our NUT-linked amendment, we would like to hear whether he is willing to put in the Bill this more robust form of wording to ensure that there is a strong duty on local authorities to consider all of the needs of young people defined in the amendment.
We would also like to hear how the Minister envisages the fourth option, or gateway option, working. Is it a serious option that the Government would consider as a mainstream alternative to what appears in the Bill or would they use it just as a short-term stopping-off point prior to a young person entering education and training with personalised support? That is what I am hoping the get out of moving the amendment.

Oliver Heald: I want to return briefly to a point that I made earlier. When it comes to the service of the notices that are created in clauses 39, 40 and 41, and the question of personalising the training and education opportunities, as in amendment No. 164, it is important that there is genuine engagement between the local authority and the individual concerned.
I am worried that a person who has left school with the sort of the problems that I have mentioned in Committee, who is perhaps able to read and write at only a low level—they might be at a lower level than one at which they would be able to tell their bank, for example, about a change of address—will find the notices complicated. A young person who is ill-educated might not understand the sort of details that are being talked about—the courses are called things such as basic skills or life skills. Will the Minister assure us that when the notices are served on someone who might have poor educational attainment, there will be a discussion with them to explain exactly what the notice means?
In answer to earlier questions, the Minister told me that there will be advisers—I accept that—but could there be some more formal legislative requirement to ensure that a person is notified, so that we do not have a situation in which notice after notice arrives at a person’s house and are ignored? Ultimately, such a person could find themselves in a serious process, in court and so on. I am concerned about the possibility of a paper trail but no active engagement between individual and authority. Will the Minister say whether the notices will be served personally or served by post? If it is not a personal service, will the panel require that a person has understood a notice? Will the Minister comment on those issues?

Jim Knight: What a pleasure it is, Mr. Bercow, to see you in your place yet again. I am sure that the Committee will not tire of your presence in the Chair, however consistently and frequently you are there.

John Bercow: Order. I do not want to delay the Committee, and I appreciate that this announcement will be accompanied by much flowing of tears, but I told the Minister before the sitting that, sadly, this is my last sitting in the Chair of this Committee.

Jim Knight: Naturally, Mr. Bercow, we are distraught, which is not to say that we are not looking forward the Mr. Bayley’s return next week. I might not have the opportunity later on this afternoon to say how much I have enjoyed serving under your chairmanship, so let it be recorded now that I have thoroughly enjoyed serving under your guidance.
I absolutely agree that the education or training specified in an attendance notice must be appropriate to the young person’s needs. The aim of the notice, ultimately, is to get the young person to participate in education or training so that they can benefit from the opportunities and advantages that that offers. They can do that only if the learning programme meets their needs. In addition, the local authority must identify an appropriate learning place for the young person and give them the opportunity, and support to engage in it voluntarily, before they can even meet the conditions for issuing an attendance notice. It is important that the hon. Member for Yeovil understands that the attendance notice is a stage in an enforcement process and that enforcement should not start, as I have said repeatedly, unless adequate support has been provided but not taken up.
I also agree that in many cases the learning programme specified at that point would need to be specialised and personalised. The hon. Member for North-East Hertfordshire asked about discussion and whether the notice would be personally served. As I have said to him before, prior to enforcement, all the support provided and the contact via Connexions with a personal adviser would be personal.

Oliver Heald: My concern is the person who just does not engage with the process, which happens in other contexts such as the welfare-to-work programmes. I am worried about the sort of people who do not go when they are invited to an interview and ignore a letter when they get it through the door. How do we ensure that such people understand what they are supposed to be doing and how the process cranks open?

Jim Knight: I understand that the hon. Gentleman is describing a scenario in which someone just does not engage with the process in any shape or form. However, there will still be the expectation that the personal adviser will have made contact with the individual. It will not be sufficient in terms of adequately assessing and offering support to have sent letters, e-mails or other forms of communication. It is important that there is a personal exchange between those involved either by phone or face to face to discuss the matter. I envisage that taking place over a series of exchanges, not simply one.
On the serving of the notice, obviously the initial steps are set out in clause 39 in relation to the 15-day notice period. It would normally take the form of a letter to the address that Connexions and the local authority have for that individual. Clearly, if the 15 days elapse and there is no response, the process would move to the serving of the notice. If the person to whom the initial letter has been served says that they did not receive it, that it did not arrive in the post, or that they could not read it, it may be that the letter would at that point be reissued. The notice would be reinstigated by means of it being personally served and the personal adviser going to the address, giving the person the letter and explaining its contents. That is what would need to happen at that point.
Later, in respect of the attendance panels themselves—and I am sure that we will discuss this in the context of later amendments—we want to ensure that panel hearings take place in a friendly way and not a formal court-like setting. Such a setting would occur later down the track, if the matter is sent to the youth court. The panels should be informal and the young person should participate in the panel hearing, which is something that we will also discuss later. The young person should understand what is happening and the process in which they are involved at every stage. I hope that that helps the hon. Member for North-East Hertfordshire.

David Laws: I hope that I am not pre-empting something that the Minister will come to later, but subsection (5) states:
“The education or training must be suitable for the person”.
Before we proceed, how will “suitable” be defined?

Jim Knight: I will address the specific wording of the subsection of this clause in a moment, but there is great flexibility in the way that it is currently worded. On the questions of the hon. Member for Yeovil about what we keep referring to as the fourth option and fourth way, as I have said, support is important both in practice and in theory, for however long it is needed, but it should not be separated from participation. The specific aim of the attendance notice is to set out participation in education and training, but we envisage that support will also continue and that it will be flexible in the form that it can take. However, support is not an alternative as other ways of participating are. It is not an alternative to education or training, but it must work towards those to get to the point of the attendance notice.

David Laws: I apologise for interrupting the Minister again. However, I wonder whether he is going back on an undertaking given earlier in the Committee that he could envisage circumstances in which people might need support that could mean that they are not in education or training for a long period of time, and that that support, possibly from a voluntary group, might not look like education or training. Is that still a possibility?

Jim Knight: It is certainly still a possibility. I would not want to retract that in any way. I am simply suggesting that we envisage support continuing, but the support is not an end in itself, as I have said before. The end is appropriate education and training. A re-engagement activity may be required in order to get young people into education or training, but in most cases I would envisage that it would have been offered, and hopefully delivered, beforehand. The attendance notice process is there to try to get them to engage and I do not want to define it any differently from the way it has been defined previously.
The amendment is technically unnecessary. The existing provision in subsection (5) that the education or training specified in the notice must be suitable—the words that he picked up on—for the young person, already implies in law that it must be appropriate for their individual needs and circumstances. In that respect, it is very flexible.
However, I have reflected and will continue to do so between now and the Report stage on whether we need to define the matter slightly more closely so that it is not only suitable for the person, but addresses their individual needs. I cannot give the hon. Gentleman a categorical assurance because I need to reflect further and consult others on the matter. However, I intend to see how we can refer to the flexibility of the definitions that we set out in clause 4, but without relating solely to that clause, because it does not include the employment with training option. We would obviously want that to be available within the attendance notice. I hope that that gives the hon. Gentleman some encouragement and that he will make only a short intervention.

David Laws: In addition to providing the definition of suitability, which the Minister still has not really given us although he said that he might reflect on it, will he also clarify whether he will determine the matter of suitability?

Jim Knight: The interpretation of “suitable” will be undertaken, first, by the local government officer issuing the notice, and, secondly by the attendance panel, should one be convened to look at the notice.

David Laws: And the definition?

Jim Knight: The definition is about what is suitable to meet the needs and circumstances of the young person concerned so that they can fulfil their duties imposed by clause 2. That is how it is set out in the legislation. I do not know how to define it any more closely, for which I apologise. As I have said, I will consider whether to tighten the wording in subsection (5). I hope that the hon. Member for Yeovil will withdraw his amendment on that basis.

David Laws: I am grateful to the Minister. Given how difficult it is to wring any concessions out of Ministers on these occasions, I suppose that I should be extremely grateful and rush out a press release that champions the achievement and glorifies the NUT for being associated with only the second twinge of movement from a Minister during Committee.
May I, however, clarify a couple of concerns? Perhaps I did not emphasise the issue of suitability enough in my opening comments. I took it for granted that the Minister would trot out his line on it, but he did not say as much as I expected, so I shall say something about it now before moving on to the issue of support, and the question of what he might concede and what he will not concede.
Clause 41 (5) says:
“The education or training must be suitable for the person.”
That raises the question of what the word “suitable” means and who should interpret it. I think that we know who will interpret it, but the greater problem is what it means. The Minister said that there is great flexibility around the word, but that can be a good or a bad thing. It may mean that there is a lot of uncertainty or that the word is interpreted very differently in different parts of the country, so we need to be slightly clearer about what it means.
We can think of a number of different examples in which the issue of suitability might arise. One with which the Government will not have a problem is a young person who is in employment. To take our earlier example, someone who is employed as a car mechanic may want to become a nuclear physicist.

Jim Knight: It was an accountant before.

David Laws: Perhaps that person has become more aspirational and more interesting since we last discussed the Bill and wants to do something that requires a course that does not relate to their employment. They therefore tell the local government officer that they are not willing to go on the local college’s tedious car mechanics course, which people are trying to persuade them to take, and say that they are waiting to go on a course in accountancy, nuclear physics, fishing or some other subject. Will there be any obligation on them to take up education and training that is related to the employment that they are in? Does the question of suitability have any relevance in that situation?
The Government can probably provide reassure on that issue, but the amendment also refers to the question of ability and aptitude. What if someone considers a course is too difficult for them, given their skills? What if they think that they need some other type of education beforehand? What if they simply think that the local college course on offer in their subject is hopeless and rubbish or that it is being taught that year by somebody who is not in regular attendance? What if they want to wait until the next year?

Jim Knight: I remind the hon. Gentleman of what I said this morning. At any point, the young person can voluntarily opt to fulfil their duties under clause 2, in which case the enforcement proceedings will stop, unless the issue has reached the youth court. If they do not want to go on a particular course with a particular lecturer, and there is something else that they want to do that they think is more suitable for them, they can do it.

David Laws: Yes, that is true, but they might not have that option, particularly if the course that they want to take is closed that year or is not available in a setting that they reach. It may be difficult for them to afford transport costs, which we shall discuss later.
If I were a young person who did not want to comply with the Bill, I might well argue that the education offered to me was not suitable, particularly if I was not enthusiastic about taking up education and training in the first place. Somebody might come to me and say, “You should be in education and training. How about these eight different courses at Yeovil college?” All those courses would no doubt be excellent, particularly, I hasten to add, if they were on offer at Yeovil college. In another part of the country, however, there might not be any exciting courses on offer, and the educational institution might be less effective. How would suitability be defined in that case?
We therefore want a bit more clarity from the Minister on how the word “suitability” relates to a person’s needs and aptitudes. I am not sure whether he is saying that he will consider clarifying the issue between now and the Bill’s later stages, or whether, when he said that he would reflect on it, he meant that he would reflect on its more personalised elements. He said that there could be guarantees that the support needs would meet the young person’s requirements. That is a major concern, and there is also concern about the funding that might go with it. The issue is not only whether support needs can be identified, but whether they will be funded and whether that will be acceptable.
I am tempted, notwithstanding the Minister’s generosity, to press the amendment to a Division. However, if he intervenes on me to clarify which part of the issue he is willing to reflect on, I might feel much more reassured, and therefore less likely to do so.

Jim Knight: I am particularly interested in reflecting on how the person’s individual needs could be interpreted, but it is difficult to reflect on one aspect an eight or nine-word phrase without reflecting on the other words in the provision. If I think about whether the education or training meets the individual needs of the person, I shall inevitably think about the word, “suitable”. If I reflect on that issue, I shall reflect on the subsection in its entirety—all 10 words, or whatever it is. I hope that that helps the hon. Gentleman.

David Laws: I would feel guilty and ungenerous in pressing the amendment to a Division, so I await the Minister’s thinking. I hope to be satisfied at a later stage, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 ordered to stand part of the Bill.

Clause 42

Attendance panel

Nick Gibb: I beg to move amendment No. 85, in clause 42, page 23, line 21, at end add—
‘(5) This section may not come into force before the Secretary of State has published a report setting out his estimate of the total annual cost of the establishment and operation of attendance panels.’.
Welcome back to our proceedings, Mr. Bercow. Clause 42 establishes attendance panels in each local authority that will hear appeals by young people who have been issued with attendance notices. It would be helpful if the Minister could expand on his intention towards the regulations in clause 42(3). In particular, subsection (3)(a) states that the panel chairman must not be a member of the local authority, which means, I assume, that he must not be a councillor for that authority. Can he or she, however, be an employee of the authority?

Jim Knight: To speed things up for the Committee, it is our intention that they should not be a council employee, and we will certainly clarify that point in regulation.

Nick Gibb: That is extremely helpful. Will the Minister then also set out who else can serve on the panel? Can councillors fill all the positions on the panel, with the exception of the chair? Can council employees serve on the panel, subject to the Minister’s intention that they cannot chair it? If the answer is yes, how does that make the panel independent? The clause does not refer to attendance panels being independent, nor indeed do the famous explanatory notes, so it would be helpful if he could clarify that point.
The Government’s White Paper—I presume it is a White Paper—called, “Raising Expectations: from Policy to Legislation”, says at paragraph 4.33:
“If the young person wished to challenge the Attendance Notice it would be referred to an independent adjudication panel, which the local authority will set up”.
That document therefore refers to an independent panel. Furthermore, in the Minister’s letter to the hon. Member for Yeovil of 13 February, which was copied to all Committee members, there is an explicit reference in the third paragraph to an “independent attendance panel”. Clearly, the Government have applied “independent” to the panel in their policy, but it is not clear from the clause that, other than the chair, the panel will be independent of the local authority that first issued the notice. Clarification from the Minister would therefore be helpful.
Amendment No. 85 relates to the costs that will be incurred by the local authority in establishing and running the attendance panels. It says that clause 42
“may not come into force before the Secretary of State has published a report setting out his estimate of the total annual cost of the establishment and operation of attendance panels.”
I presume that such an estimate has already been prepared by the Government in introducing the Bill. The purpose of the amendment is principally to enable the Minister to share that information with the Committee.
Subsection (3)(b) gives the Secretary of State the power to make regulations to enable local authorities to pay allowances to members of an appeal panel. Could the Minister spell out how much these allowances will be, the conditions of payment, how many members each panel will have and the likely frequency of their meetings? The Local Government Association is obviously anxious about the provision and the possible result. It is only too aware of countless new duties imposed on local government by central Government without sufficient funding to match.
The LGA said in its briefing that local authorities
“will want to be involved in the drafting of regulations regarding the constitution of attendance panels to ensure that they are not overly bureaucratic, burdensome or costly.”
Will the Minister therefore spell out his thinking on the regulations so that the Committee can be reassured that attendance panels will not be overly bureaucratic, burdensome or costly? An estimate of the likely annual cost of operating these panels would also assist our deliberations.

David Laws: I shall be extremely brief. We support the amendment, and we want to hear what the costs associated with the provision are likely to be, how they will be met by local authorities and whether there will be any additional funding relating to them. We also hope that there will be a clear answer from the Minister to the question implicit in the observation by the hon. Member for Bognor Regis and Littlehampton that local authorities want to be involved in the formulation of the regulations as to how the panels will operate and how they will be set up to make sure that the costs are reduced and that they are as effective as possible. I hope that the Minister can tell us how they will be involved.

Oliver Heald: Will the Minister make a few comments about the implications for civil legal aid? Community legal centres provide education law advice and are funded by the legal aid fund. In those circumstances, it appears that there will be a need for more advice for young people who attend panels. I should be grateful to know what discussions the Minister has had with the Ministry of Justice and what he estimates will be the costs to the legal aid fund.

Jim Knight: The attendance panel is crucial to the effectiveness and fairness of the enforcement system. It is in place to ensure that attendance notices are issued fairly and that there has been sufficient opportunity and support. They provide an additional safeguard to ensure that no young person can enter the enforcement system inappropriately. We will ensure that it is effective in its purpose and that it is not too bureaucratic.
The hon. Member for Bognor Regis and Littlehampton asked about the panel’s composition and independence. We will want to consult fully about how it should be composed and how it should work, but I can set some of those things out in principle. Part of the consultation will undoubtedly involve the LGA and other local government interests to ensure that they have a proper opportunity to express their opinion. I remind the hon. Gentleman that we have committed to funding any costs to local government of carrying out that function in full.
As for composition, we envisage that the local authority will establish a pool of potential panel members by advertising. Panel members will receive fairly brief training on, for example, understanding the law and regulations in education and support systems, and on the expectations of them when they interact with young people who come before the panel. Those are examples—it is not an exhaustive list of the things in which they might be trained. Some people in the pool will be designated as chairs, and they will receive additional training. The pool will include some people with a background and expertise in education or the support professions—such people would have experience of the education system and would understand it, just as schools admissions appeal panels include at least one person who has experience in education and an acquaintance with educational conditions in the area or who is the parent of a registered pupil.
That is the requirement for the composition of admissions appeal panels, and we are seeking to replicate it. Indeed, much of the Government’s thinking on how the panels will be composed and resourced is informed by how school admissions appeal panels work. The panel will normally consist of three people: the independent chair, at least one person with an education or support background, and one other person. We will consult on whether there should be provision for larger panels in more complex cases. Clearly, some importance will be placed on ensuring that there is sufficient diversity among panel members, and that they reflect the area in which the authority is based.
There should be restrictions on who can become a panel member to enforce impartiality and independence—an issue about which the hon. Member for Bognor Regis and Littlehampton was concerned. We will clarify by regulation the fact that someone who is employed by the local authority or the educational institution in question should not serve on the panel. The same applies to any person about whom there are reasonable doubts as to their impartiality in relation to an authority or a school. Obviously, panellists would need to satisfy the training requirements, and they should not be involved in the decision that is being appealed.
In the end, costs will be determined by the consultation, which we have not yet carried out, and after we decide how the panel will be configured. To help the Committee, the Department has made a rough estimate of about £1.5 million, based on the costs of schools admissions appeal panels. We have not made that explicit in the impact assessment, but it has been included in the general costings. As I said, we have already committed both to funding additional burdens on local authorities and to consult fully with the LGA. We will certainly consult and take careful account of the likely costs of establishing the panels and their functions. We will make our cost assessment for local authorities, and we are committed to funding the measure. I hope that I have successfully answered the questions that were asked in the debate.
 Mr. Heald rose—

Jim Knight: I have not successfully done so, because I have not responded to the interesting question on legal aid asked by the hon. Member for North-East Hertfordshire.
As I said, the panel should be informal—we will not expect legal representation in the panels. If the hon. Gentleman were to look at page 23 of the impact assessment, he would see some figures on the costs of prosecution. We do not think that the process will result in any more young people being entitled to legal aid than now.

Oliver Heald: A certain number of parents and students go to a law centre to obtain legal advice, funded by the civil legal aid fund, on panels, exclusions and such things. The measure will create a larger cohort of such people. We are talking about panels for 16 to 18-year-olds who are do not comply with the measure, so there are bound to be more people who want educational advice from law centres. If only one case went to the panel, that would create one more such person. In those circumstances, I suggest that the Minister talk to the Ministry of Justice, because the civil legal aid fund is very pressed.

Jim Knight: We have had discussions with the Ministry of Justice about this and other clauses. I will think about whether I need to have a specific conversation with it about the point that the hon. Gentleman has made. As far as I am aware, that is not something that the Ministry of Justice has raised with us and therefore it is not of great concern. I accept the generosity with which he is advising me, and I accept his point in that spirit.

David Laws: I am grateful to the Minister for giving way with such good grace. I am sorry if I have missed this point by not listening attentively enough, but of the Government’s estimates of the cost of the Bill, what is the cost for independent advocacy advice that might be necessary under the clause? What assumptions have the Government made about the cost to local authorities of giving access to independent advocacy?

Jim Knight: The assumptions about cost that I set out when I gave a figure of £1.5 million were based on the schools admissions appeal panel. We will go on to debate an amendment about independent advocacy, and I will happily expand further on this issue at that point.

David Laws: I think that the Minister will confirm that under clause 42(1), the regulations that will be issued will provide for independent advocacy for young people. Therefore, the cost of that will be covered in his estimates.

Jim Knight: As I said, we will come on to this issue. We are not saying that an authority must provide independent advocacy, but in guidance we will say that if someone has difficulty representing themselves it would be good practice for the authority to offer that facility to the young person. The atmosphere of the panels should be friendly and informal so as to engage young people. The more we end up using advocates, the greater the danger that the process will be formalised in such a way that young people will become disengaged from it.

David Laws: May I confirm that the Minister is saying that in the regulations that are at issue under clause 42(1), there will be no duty on local authorities to guarantee that independent advocacy will be available, even when young people need it for their interests to be represented to the panels? If that is the case, I am disappointed.

Jim Knight: I am trying to find the amendment under which we will discuss independent advocacy in the panels. I am in your hands, Mr. Bercow, but I want to encourage the hon. Member for Bognor Regis and Littlehampton to withdraw the amendment and discuss the issue of independent advocacy when we reach the relevant amendment.

Nick Gibb: I listened carefully to the Minister’s response to the amendment and to the exchange between him and the hon. Member for Yeovil. The point that he was trying to extract from the Minister is whether, within the £1.5 million, there is a cost for advocacy. Regardless of whether he wishes to encourage it, which he does not seem to, or whether local authorities will provide it in any case because they believe in helping social justice, advocacy is inevitable.

Jim Knight: I did not say that I do not want to encourage advocacy, but that if the need is there for the young person, the local authority should be encouraged, in guidance, to provide it.

Nick Gibb: That is a helpful revision to the impression that the Minister gave during the exchanges, but it will inevitably involve a cost. He was not able to respond adequately to the intervention of the hon. Member for Yeovil, so I suspect that the £1.5 million does not include the cost of such advocacy.

Oliver Heald: There are two possible elements of cost: one is that a legal centre could give advice to the individual and help them to prepare a statement to the panel; and the other is a case where an advocate needed to attend. In both cases, however, the legal aid fund would pay, unless the Department for Education and Skills is now thinking of funding it.

Nick Gibb: This legislation will therefore add yet another burden and drain on the fund, so my hon. Friend makes a good point. I listened carefully to the Minister, who made some good points about wanting to consult fully, which is welcome. He also said that the Local Government Association, which will have to implement that through its membership, will also be consulted on the regulations, and that the costs will be refunded to the local authorities, which will please local authorities and council tax payers. Of course, the costs always fall somewhere on the general public, so the taxpayer will be picking up the bill, and we want to ensure that we can be assured that the costs that the Minister has just divulged to the Committee will be accurate.
The Minister also gave some welcome indications about the membership of the panel, and it is pleasing that he has explicitly ruled out any employee of the local authority that issued the attendance notice being on the panel, either as chairman or as an ordinary member. It is also welcome that the panel appears to be confined to three people, which will prevent it from becoming too expensive. However, I am not yet convinced that we have bottomed out the costs, and I suspect that the £1.5 million to which he has referred is solely the allowances of the panel’s attendees. Of course, there are other costs associated with operating such an attendance panel, such as secretarial support and office accommodation within the local authority. If I have done my maths correctly on the basis of the quantum assessment that the Minister uses, £1.5 million amongst 150 local authorities is only £10,000 per local authority, so I suspect that he has underestimated the cost of operating attendance panels.
For that reason, I think that the Bill should contain a statement that requires the Secretary of State to publish a report setting out the estimate of the total annual cost for the establishment and operation of attendance panels before the section comes into play. Given that we have until 2013 to do that, I do not think that it is an unreasonable burden for the report to be published so that it can be scrutinised by hon. Members. One of the key reasons why we have any power at all in the House is to assess spending, costs and tax-raising measures.

Jim Knight: As a last-gasp attempt to get the hon. Gentleman’s agreement, we are saying that we will have a consultation and that then there will then be regulation, which can, of course, be debated by the House. The report that he proposes in the amendment would be only a report. Indeed, we would want there to be a report to inform any debate that there might be in the House about any regulation, so that will effectively happen, whether or not the amendment is made.

Oliver Heald: Will the hon. Gentleman give way?

John Bercow: Order. We cannot have an intervention on an intervention. I remind the Minister that he is only intervening.

Jim Knight: I am grateful for that, Mr. Bercow. Given that the hon. Member for Bognor Regis and Littlehampton will effectively get costings in the fullness of time, I am pleading that it is not necessary for him to press the amendment.

Nick Gibb: It probably is necessary.

Oliver Heald: It is true that there are regulations under clause 42(1), but they are under the negative procedure, so there is no guarantee that there would be a debate on them. I do not know whether my hon. Friend the Member for Bognor Regis and Littlehampton feels that the Minister might look at the concession of making that part of the affirmative procedure.

Nick Gibb: My hon. Friend makes a valuable intervention. If the Minister were to promise to change that particular regulation and make the power into an affirmative resolution power, I would seek leave to withdraw the amendment. About 2,000 or 3,000 negative resolution statutory instruments go through the House every year and I suspect that few of those have a fully costed report attached to them. Given that it is not mutually exclusive to have a regulation and a report setting out the Secretary of State’s estimate of the costs of those regulations, I see no reason on the basis of that intervention or the general debate we have had not to press the amendment to a Division at the appropriate time.

David Laws: The amendment deals with cost issues, but we are entitled to ask what is included in the cost estimate. As a consequence of probing that issue, rather disappointingly, we have found that advocacy services will not be a requirement for local authorities. I appreciate that the Minister’s natural instinct was to discuss advocacy under clause 43, when we will deal with other advocacy issues, but it is under clause 42(1) that the Government will provide guidance to local authorities in relation to duties under the provision.
I have had a representation from Barnado’s that covers not only some of the later clauses, but clause 42(1) and therefore the costing of it. In the context of a group that supports the Bill as a whole, Barnado’s makes it clear that it would like Ministers to provide clear assurances that statutory guidelines under clause 42(1) will require local authorities to make available independent advocacy services. When the Minister was challenged on that, he said that he would encourage local authorities to provide those services. Therefore, presumably his cost estimates are based on the assumption that only a proportion of local authorities will do so. If he is assuming that they will all do so, one wonders why the necessary provision cannot be put into regulations or the Bill.
Barnodo’s makes the point powerfully that it wants to ensure that independent advocacy services are available, particularly for young people who have learning, communication or sensory difficulties and in other specific circumstances. We can all imagine that young people who appear before such a panel under the circumstances that are envisaged would find the situation incredibly difficult, may have serious communication difficulties and may find it intimidating. Is it good enough to encourage local authorities to provide advocacy services in those circumstances? Given the Minister’s generosity in relation to the previous clause, when he said that he would reflect on some of the issues, will he reflect on the possibility of obliging local authorities to provide advocacy services for a prescribed number of conditions? If local authorities have financial constraints, it will not be good enough if, on the grounds of cost, some local authorities chose not to make advocacy services available to young people with the learning and communication difficulties to which Barnado’s refers. That seems to be a powerful point to which the Minister could usefully respond or on which he could reflect.

Jim Knight: I will say two final things. We continue work on the estimates of the cost of attendance panels and at this stage we intend to have those ready in order to include more detailed estimates in the revised version of the impact assessment that will be published when the Bill is introduced in the other place.
Regulations will not provide for an entitlement to independent advocacy, but they will state that the young person should be invited and allowed to bring someone with them to assist with the process. However, as I have said, it is not a formal court hearing. I have also said that guidance would indicate that it is good practice where there are specific needs. I shall consider whether in that guidance we should define things carefully, leaving some flexibility for the authorities, along the lines described by the hon. Member for Yeovil.

David Laws: I welcome that response and make a brief intervention in order to reinforce the concession that we might get from the Minister on the matter. I am grateful to him for saying that he will at least consider placing a duty on local authorities relating to young people with particular learning and communication needs. That would satisfy some of my concerns about the clause.

Nick Gibb: Notwithstanding the concession on advocacy that we will come to in the following two clauses, I remain highly concerned about the panel’s cost implications. Given that the Minister has indicated that the estimates are still being worked up, I believe that we should see them before the legislation comes in to force. Therefore, I press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Clause 42 ordered to stand part of the Bill.

Clause 43

Appeal arrangements

Nick Gibb: I beg to move amendment No. 152, in clause 43, page 23, line 28, after ‘notice’, insert
‘on the grounds of its suitability or for any other reason’.
The clause sets out the right to appeal against an attendance notice. The hon. Member for Yeovil has raised the matter of advocacy, which we will come on to debate later. The concession that the Minister expressed during the last debate was very welcome. Barnardo’s has expressed strong views on the matter to the Committee, stating in its briefing that further safeguards should be in place in the Bill to ensure that
“advocacy is available, where needed, to enable a young person's voice to be heard at an Attendance Panel at every stage”—

John Bercow: Order. Before the hon. Gentleman continues, I counsel him against dilating on matters with which we have already dealt. It is important that we do not stray back to a debate that we have just had, and that he focuses his remarks on amendment No. 152.

Nick Gibb: I am grateful for that guidance, Mr. Bercow. I will move swiftly on to focus on the amendment. The right of appeal in the clause is against the issuing of the notice, or against the education or training provisions set out in the attendance notice, or against a variation in a notice.
This is a probing amendment, designed to emphasise the fact that the grounds for appeal can include the suitability of the education or training provision. It was suggested by the NUT, which is more influential by virtue of the fact that it is outside the social partnership with the Government than it would be within it, given the concessions have been made in Committee following its representations. The NUT is seriously concerned about the extent of the grounds for appeal. It says in its briefing:
“It is hoped that the provision for young people to appeal against an attendance notice on wider grounds will help encourage local authorities to identify individual needs.”
It goes on to cite the National Children’s Bureau, which says that
“young people subject to this legal requirement”—
to participate in education and training—
“and its associated enforcement measures should have a right of redress”.
The NUT says:
“One way of doing this would be to give them access to a complaints system that is open to young people; has clear, published criteria for the issues that it is able to address; is easy to access; has a transparent decision-making process, and; has real authority.”
It would be helpful if the Minister set out the grounds for appeal and whether those include the availability of suitable training provision in the area.

David Laws: I feel obliged to speak briefly on the amendment, having raised the issue of suitability earlier and having managed to associate myself with two NUT-inspired amendments, which are the only things that the Minister has conceded so far. In anticipation of his being particularly friendly towards the NUT at the moment, I will associate myself with the amendment before he adopts it in the Bill. It addresses very directly the issues of suitability that we raised, as well as our concerns about the lack of clarity as to how that will be assessed. How suitability is defined will provide the basis for challenges that are made on the issue. This is another superb amendment from the NUT and I look forward to the Minister conceding again.

Jim Knight: Committee members are trying to encourage me to disagree with the National Union of Teachers. However, the clause requires that local authorities make arrangements for young people to appeal to the attendance panel against the giving of the attendance notice, the description of education or training that they must attend, and any variation to the notice. No grounds are specified so, as drafted, the provision allows the young person to appeal against the description on the grounds of its suitability or for any other reason. There is no need to specify grounds, and there is a possibility that doing so would risk suggesting a restriction on the possible grounds for appeal.
In addition, I remind the Committee that the description of education or training in the attendance notice must be suitable, as we have discussed. The provider must have been consulted. We are anticipate the thoughts of the NUT, as expressed by their comrade, the hon. Member for Bognor Regis and Littlehampton, but I hope that he will withdraw the amendment.

Nick Gibb: I am grateful for that explanation of the clause. The Minister’s words, which will now form part of the law, will be very helpful to practitioners outside the House and, in particular, to the National Union of Teachers. On the basis of his words, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Gibb: I beg to move amendment No. 86, in clause 43, page 23, line 37, at end add—
‘(4) Regulations made under subsection (3) shall include a requirement that any appeal made under this section shall be heard by the attendance panel within one month of the appeal being made.’.
The amendment was tabled to ensure that there is no undue delay in the young person being able to make their case to the attendance panel. There is always a tendency in bureaucracies for a lack of urgency to creep in, but it is important for the young person who is subject to the pressure of a written notice from a local authority and then an attendance notice that the issue is resolved swiftly. If the enforcement procedures are to be real from the point of view of the Government and of those in favour of compulsion, the appeals process must not become bound up in delay and obfuscation. The amendment therefore seeks to ensure that appeals are heard within one month of being made. Swift action on all the measures in the Bill is important for its efficacy, given the short period during which the duty to participate will apply. It would also be helpful if the Minister said something about the procedures of the attendance panel and whether the rules of natural justice and those that apply to tribunals will also apply to the hearing of appeals on attendance.
The Minister expressed the view that arrangements for those appeals should be informal so that the young person can engage with them. However, tribunal and court rules, which have evolved over the centuries, did so for a purpose, the principal one being to protect the interests of the person appearing before them. Informality is all very well, but rules are required so that the young people are protected and have the benefit of advocacy, and so that we can ensure that the principles of natural justice still apply, notwithstanding the formality of the occasion.

Jim Knight: The attendance panel is crucial to the effectiveness and fairness of the enforcement system, and it needs to operate with as little bureaucracy as possible, so that it can be fully effective. Of course, we want appeals to be heard quickly, but it is not appropriate to specify in primary legislation how quickly. It is usual to deal in secondary legislation with operational details such as the code of practice for school admissions appeals, which specifies time limits for hearing such appeals.
What is more, it would not be right to determine those details without thorough consultation, given that the legislation will not come into force for another five years. It is more appropriate to deal with this matter in detailed guidance, which we will provide to panels to assist them in carrying out their functions, such as those provided for in clause 43(3). That guidance will be developed by my Department in full consultation with local authorities, children’s charities and young people themselves.
May I remind the hon. Member for Bognor Regis and Littlehampton that article 6 of the European convention on human rights ensures that all appeals are heard within a reasonable time? Naturally that will apply to the provisions in the Bill, and it implies that the associated principle of natural justice will have some application as well. On that basis, I urge him to withdraw his amendment.

Nick Gibb: That was a disappointing reply. Essentially, the Minister said, “We have not really thought about it. It will be provided for in detailed guidance, on which we will consult, and human rights legislation will always apply”. That is not good enough. I shall not press my amendment to a Division, as it purpose was to probe the Minister and to raise the matter in Committee. However, his response reveals a lack of preparation on the Bill’s enforcement procedures, which is disappointing for the Committee, given the paramount importance of the attendance notice and the panel. However, the point has been made, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Laws: I beg to move amendment No. 167, in clause 43, page 23, line 37, at end add—
‘(4) In considering an appeal the attendance panel must invite the young person who is appealing against the attendance notice, or the young person’s nominated representative, to make representations to it.’.

John Bercow: With this it will be convenient to discuss amendment No. 168, in clause 48, page 26, line 30, at end add—
‘(4) In considering an appeal the attendance panel must invite the young person who is appealing against the penalty notice, or the young person’s nominated representative, to make representations to it.’.

David Laws: The amendments are important, and I thank Barnado’s, both for inspiring them and for its excellent briefing note, of which other Committee members have had sight. I must confess that when I first read the Bill I did not pick up the point made by Barnardo’s that the rights of appeal and the rights of advocacy are rather different at the three stages of the process set out in chapter 5 of the Bill.
At present, the attendance panel can consider the young person’s case at three points in time. First, it can do so on appeal against the attendance notice, as set out in clause 43. Secondly, it can do so on appeal against the penalty notice, as set out in clause 48, to which amendment No. 168 applies. Thirdly, it can decide whether the local authority can commence proceedings against the young person for failure to comply with an attendance notice, as set out in clause 46.
Barnardo’s has pointed out that only at the third stage of that process is the young person given the right to attend the attendance panel to put their case. That is covered under clause 46(6). There is no equivalent requirement set out in the Bill at either of the earlier appeal stages, and so the amendments would address that anomaly. Barnardo’s supports the approach in the Bill as a whole:
“Barnardo’s believe that a young person should be entitled to nominate a representative to make representations on their behalf. This could be, for example, a parent friend or key worker; or in some circumstances an independent trained advocate.”
There are two aspects to this double set of amendments. First, the power to appeal and to be present for that appeal should be available at all three stages, and not simply in one of them. Secondly, the rights of the young person to advocacy should be strengthened. We touched on that issue in when we debated clause 42, because Barnardo’s has rightly pointed out that under clause 42(1), regulations will be issued to make clear what rights young people to advocacy and other matters. Barnardo’s rationale relates not only to the rights and freedoms of young people as set down in article 12 of the United Nations convention on the rights of the child, but to some of the rights of young people as set down in the Government’s own Human Rights Act 1998 and the Children Acts of 1989 and 2004.
Barnardo’s goes on to point out that there is another powerful reason to include rights of presence in the appeal process. Not only are communication rights set down in law and in the UN convention, but young people may be more likely to co-operate with the whole process if they feel part of it and believe they have a chance to express their concerns. They may learn to respect other people’s rights and to take on a sense of social responsibility. They may understand more clearly what the local authority and the Government are seeking to do in pursuing this process, which may otherwise seem draconian and threatening. They may gain some confidence in dealing with other people in the settings in which they are placed, as they have to appeal against the panel’s decisions, and they will develop other interpersonal and practical skills.
There is a good case for making sure that young people are involved at every stage, as that could be helpful in ensuring that they take a more constructive view of the process than would be the case if they were involved only at later stages. I should like to return to the issue of advocacy. It would be highly beneficial to young people and the Government if the Minister considered stronger advocacy powers in the Bill, as set out in the two amendments, which would not only allow young people to determine that someone else should represent them at the panels but would make sure that a duty is placed on local authorities to provide independent advocacy access when the young person is unable to represent their own needs and requirements confidently or might not be able to call on another person, such as a parent, relative or friend, to do so effectively. Some of the young people we are discussing fall into that category.
I understand the Government’s lack of enthusiasm for opening the door to an enormous process of expensive semi-legal appeals, but young people with particular problems would form a much smaller group and thus the costs would be much smaller. The Minister has said that he is willing to reflect on that particular issue. That is helpful, but I hope that he will show flexibility and allow the voice of young people to be heard at the other stages in the appeal process.

Nick Gibb: We support amendments Nos. 167 and 168, which were tabled by the hon. Member for Yeovil. The absence of guidance on the procedural rules of the attendance panel is an issue that I have already raised. That is a worry, so it is right to put such matters into primary legislation to ensure that the panel acts in accordance with the principles of natural justice.
As the hon. Gentleman said, under clause 46(6), a young person against whom proceedings are taken for failing to comply with an attendance notice must be invited to make representations to the attendance panel before proceedings begin. Why does the same right not apply when a young person appeals against the issuance of an attendance notice? Giving a young person the right to attend to give evidence at their own appeal is the right thing to do. We do not want the panels to become like the primary care trust appeal panels to which members of the public can appeal if they are refused funding for a particular treatment. The panels hear a raft of cases all on one day; they do not hear from the patients themselves. They read through the notes and reach a verdict. Decisions often take less than 15 minutes, but they can be a matter of life and death to some people. It is therefore important that the appeals panel can at least hear from the young person before it confirms the issuance of an attendance notice.

Jim Knight: When the attendance panel is considering whether it is appropriate for a local authority to begin proceedings against a young person, clause 46 states that it is required to invite the young person to make representations to the panel. In that case, the consequences in respect of a panel’s decisions about the failure to comply with a fixed penalty notice are serious for the young person, which is why we have set it out in primary legislation.
The amendment would introduce a similar requirement when the panel is considering either an appeal against an attendance notice or an appeal against a penalty notice. It would entitle the young people to attend the hearing considering their appeal or to nominate a representative to attend in their place. I very much agree that the young people should be allowed to attend the appeal hearing and to bring someone with them if they want to, and I will ensure that that is covered in the regulations governing the panel’s operations. I have considered whether such provisions should be made under primary legislation as the consequence of the third item in Barnardo’s list to which the hon. Member for Yeovil referred. I hope that the Committee will accept my reassurances that it is sufficient to act under secondary legislation in respect of the first two items, but the consequences of the third item are markedly different and much more serious, which is why we must have the justification under primary legislation
The panel will invite people who understand the young person’s circumstances to make representations. They could include, for example, the Connexions personal adviser, the youth worker, a teacher or a tutor, depending on individual circumstances. Those representations and the young person’s explanation will be important in helping the panel understand the individual circumstances of the case. It is difficult to envisage a circumstance where the panel could meet and do its job as set out in the legislation without hearing from the young person about the steps that have been taken to help, support and re-engage them, and decide whether everything possible has been done to help them.
It is appropriate to put the detail of the panel’s operations in regulations, and to take time to consult on that. The regulations will be laid before the House. As for independent advocacy, we discussed that at some length in relation to the previous clause. I have very little to add except to clarify that I do not intend to make it a duty on local authorities. However, I will look sympathetically at what we can set out in guidance regarding the promotion of advocacy for young people who would otherwise struggle fully to represent themselves. Given that assurance, I hope that the hon. Member for Yeovil is fully reassured and will withdraw his amendment.

David Laws: I am grateful to the Minister. It has been a long afternoon, but I thought that he was slightly more enthusiastic earlier about reflecting on the advocacy issue and whether local authorities should have a duty to a particular category of high-needs youngsters. He appears to be rowing back, having cleared the relevant clause. I will look at his words more closely later, or we may seek to return to the issue at a later stage in our proceedings.
On the bigger issue that the amendments raise, I am reassured by the Minister’s comments—on a scale of 10, he scores eight. He said that he will allow the regulations to take into account the proposal in the amendments that the young person be invited along to all stages of appeal, including those set out in clauses 43 and 48, as well as clause 46. I think he was also saying, as is implicit in the amendments, that a young person’s nominated representative could also go in place of the young person.

Nick Gibb: I am baffled as to why that provision should be made in secondary, rather than primary, legislation. I do not buy the argument that proceedings under clause 46 are more serious. The only argument for using secondary legislation is that it changes frequently or is of less importance generally. Attending an appeal is in the same category in either case, and if provision is made for attendance in clause 46, it should be in primary legislation in other instances, given that the Minister wants to make it a requirement.

David Laws: I was about to come on to my two reservations, but the hon. Gentleman quite rightly got there before I had a chance. In the Minister’s response, there were three warning notes that made me a little edgy. First, he did not say, “These amendments are so fantastic that they will be enshrined in the Bill in your name and in Barnardo’s name for the rest of time.” We know that Ministers do not like to do that very often with Opposition amendments.
More seriously, the Minister began by talking about “allowing” young people to attend, which is not quite the same as “inviting”. Later, he used the word “invite”. As the hon. Member for Bognor Regis and Littlehampton indicated, the Minister also drew attention to clause 46 as “markedly more serious” than the other two clauses and the appeals against the attendance and penalty notices. That rather hinted at some uncertainty in his mind as to whether it would be sensible to provide those rights of attendance and make sure that someone was invited.
I would much rather see amendments made to the Bill. I am inclined to press my amendments to a Division, but I do not want to do so unnecessarily. Will the Minister reassure me, notwithstanding the not very strong argument for leaving the measure out of the Bill, of two things? First, can he assure be there will be an invitation to attend under clauses 43 and 48? There must be no doubt—the Government must not change their mind later—that they are committed to an invitation under those clauses. Secondly—and I am extending my comments to allow the Minister to reflect on the issue in detail—will he reassure me that there will not only be an invitation and an undertaking, but that the invitation will extend to the young person’s nominated representative?

Jim Knight: I am very happy to clarify the fact that in the informal and friendly atmosphere of the panel, it will be appropriate for the young person not only to be allowed but invited to bring someone with them, and indeed, to attend themselves.

David Laws: I think that that is good enough for me. I regret that the measure will not be in the Bill, but again, I would appear churlish if I failed to accept the Minister’s reassurance, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 ordered to stand part of the Bill.

Clause 44 ordered to stand part of the Bill.

Clause 45

Offence of failure to comply with attendance notice

John Hayes: I beg to move amendment No. 34, in clause 45, page 24, line 24, leave out first ‘an’ and insert ‘a civil’.

John Bercow: With this it will be convenient to discuss the following amendments: No. 35, in clause 45, page 24, line 27, leave out ‘an’ and insert ‘a civil’.
No. 81, in clause 45, page 24, leave out lines 30 to 31.
No. 36, in clause 45, page 24, line 30, leave out from ‘person’ to end of line 31 and insert
‘acting unlawfully under subsection (1) is liable to a civil penalty not exceeding £200.’.

John Hayes: If I have been uncharacteristically quiet so far today, and now rise, moist eyed, with a tremor in my voice, it is because I know that we shall soon be parted, for you have told us, Mr. Bercow, that you will not be joining us next week. May I advise you during that brief sojourn to read again William Morris’ “News from Nowhere”? It is a fine book that is entirely relevant to the Bill, and indeed, to this aspect of the Bill, because Morris understood that training was critical—that the relationship between craft and beauty was of immense importance in inspiring young people to acquire skills.

David Laws: Will the hon. Gentleman reassure me that this is not another of the volumes that he has been reading in Committee during my speeches?

John Hayes: No, I was riveted by the hon. Gentleman’s speech to such a degree that I was unable to pick up a single paper. I was entirely preoccupied by the sagacity of his remarks.
To return to the amendments more specifically, Mr. Bercow, you will know that at the heart of our considerations thus far has been the concern of Opposition Members, among whom I include the hon. Member for Yeovil, about the prospect of criminalising young people. According to the explanatory notes for clause 45,
“non-compliance is an offence and liable to a fine of a maximum of level 1 on the standard scale. Currently level 1 is a maximum of £200, with the actual amount in each case being decided by the court in light of individual circumstances.”
The amendment would delete the criminal elements of the Bill and translate them into civil penalties. In earlier sittings, we challenged the Minister on precisely that point, and we did so in concert with many witnesses who gave evidence to the Committee before we started our detailed scrutiny. The amendment would therefore specify that non-compliance be a civil matter, rather than a matter for the criminal law.
Time and again in the evidence sessions, we heard that young people may be criminalised by the Bill. That is of great concern to the very organisations with the most experience of dealing with challenged young people—those young people who are most typically disengaged from the system. I make no apologies for reminding the Minister, because he seems recalcitrant about the matter, of the evidence that we took from some of those experts. Martina Milburn, the chief executive of the Prince’s Trust told us that
“the bulk of the 40,000 people who we worked with last year had issues with drugs and alcohol. What do you do with a young person who is already going down the path of taking too many drugs and drinking too much and who just says, ‘I’m not going to do it’ and disappears? That happens not just in the age group that we are talking about. I was talking to a young person yesterday who started drinking at eight and who was on heroin by the time he was 11; he certainly was not in school after that time. The question is how you deal with that. Do you increasingly criminalise young people and just say, ‘Right, we’re going to lock you all up,’ or do you find some way of trying to reach them and sort out some of their issues?”——[Official Report, Education and Skills Public Bill Committee, 22 January 2008; c. 16, Q36.]
That evidence graphically illustrates that the young people in greatest need are least likely to benefit from the Bill, particularly if it coerces them. We need an approach that is founded on the principle of encouragement of support and is sensitive to the fact that those young people might not be in a position to abide by the terms of the Bill. As the representative of the Prince’s Trust said, if someone is already in the kind of dire circumstances that she described, it is unlikely that the Bill as drafted will make much difference to them.
The Association of School and College Leaders also submitted a briefing on the Bill. It states:
“Our preferred approach to achieving full participation is by persuasion rather than coercion. In particular we do not support the potential application of criminal penalties for what is a civil matter.”
Our amendments would ensure that enforcement of the provisions of the Bill would be restricted to civil law. It is inevitable that we will oppose the Government’s measures unless the Minister can make a compelling case for criminalising young people who are disengaged from education and who are some of the most vulnerable members of society—denied a loving home, support and the knowledge and guidance of parents.
For Conservatives, and I guess for some Liberals too, from all that we have heard from the hon. Member for Yeovil, education means opportunity for all, rather than criminalising a few. Even if the Minister cannot accept the amendments today, I hope that he will reflect on the tenor of the discussions that have taken place over these past weeks. It is not the case that members of the Committee who do not share his enthusiasm for criminalising young people do not also share his enthusiasm for increasing participation; we simply do not think that the system that he wishes to put in place will work.
That is the best pragmatic argument for supporting the amendment that I can make. I hope that the Minister, in the spirit in which I have offered it, will seize it with both hands—although I have thrown him lifelines before and he has cast them aside—and get himself off the hook by translating the criminal elements of the Bill into civil matters.

David Laws: There is no point in the Minister sighing at the thought of me speaking. After all, I am going to speak to amendment No. 81, as it would be somewhat negligent not to since I tabled it and it has been selected for debate. The amendment would delete lines 30 and 31 from clause 45 and thereby prevent someone from facing a fine not exceeding level 1 on the standard scale. The hon. Member for South Holland and The Deepings will agree with that aim.
We come back, as the hon. Gentleman did, to a good many of the representations about these clauses that were received from all sorts of organisations that work with young people, and even by some of those who support the Bill and the element of compulsion contained within it. The Children’s Rights Alliance for England is clearly opposed to the provisions in this part of the Bill. The British Youth Council made it clear that it was opposed to the clauses that impose penalty fines on young people.
Rainer, too, has made representations to the Committee to say that it is concerned about the proposals in clauses 45 to 48. In the useful briefing note that it provided on Second Reading, Rainer pointed out that when it discussed that aspect of the Bill with young people, it was understandably the part that caused young people the most concern and anger. The feeling was that imposing fines and criminal sanctions on young people who may, in many senses, already be marginalised will be of very little value and in some cases will actually be counter-productive. The Rainer briefing paper quotes one young person who was consulted on the issue, who said:
“The whole point is to get a better job. How are you going to do that with a criminal record?”
Rainer believes that the proposals, and the fines contained within them,
“are likely to be particularly damaging for those who have struggled in or disengaged from mainstream education.”
An interesting part of the briefing sets out Rainer’s thoughts on how the Government might reframe some of the responsibilities in a way that would be more positive, and whether the sanctions regime could be reformulated to be more rational and acceptable to young people. Rainer says that the overwhelming majority of young people that it spoke to thought it appropriate that they should face the consequences for non-attendance, but felt that
“the only suitable penalty would be withdrawing financial incentives and support (such as free public transportation, or enhanced benefit payments) for taking part”
in the courses in question. Rainer said that those incentives could be regained by somebody who then re-engaged in education and training.
We know from a previous debate that the Government are reticent about stating their intentions for the future financial framework of incentives and support for young people. Indeed, some of the comments by Ministers and officials on the record even suggest that the Government are looking at the future of the educational maintenance allowance. I wonder whether that is something that the Government might be planning to get rid of, phase out or reduce. I think that we heard from the Minister during earlier questioning that the Government are committed to keeping the EMA, but they have left open what other forms of financial support there may be for young people who have to comply with the Bill. I cannot recall when the Minister said he would be in a position to tell us about the financial support structures that will be in place after 2013. I have a feeling that it would not be for some time.
Since I have a feeling that the Minister may not be inclined to accept all of the amendments today, I wonder whether we might persuade him first, to give some indication of when he or his successors will be in a position to say what the financial support arrangements will be for young people. Secondly, would he be willing to consider a process of sanctioning, as Rainer and young people have suggested, using the withdrawal of financial benefits for engaging in education and training, rather than this heavy-handed method of imposing fines on young people? In many cases they could not afford to pay, given the income of many young people and the fact that parents will be unwilling, or in some cases unable, to pay the fines. That could lead to criminalisation, which could then make those young people even less willing to engage, and less attractive to future employers.
If the Minister is not inclined to accept all of the amendments today, will he tell us when the Government will be in a position to say more about the financial support mechanisms and whether there is any possibility of adopting a more rational and more liberal approach—I will not say a high Tory approach, because I am not sure what the high Tory position on these matters would be—that was more positive and based more on providing incentives and support for young people, rather than the sanctions and penalties that are contained in the clauses?

Jim Knight: Amendments Nos. 34 to 36 would replace the possibility of a prosecution and a criminal fine on breach of an attendance notice with liability for a civil penalty not exceeding £200, as the hon. Member for South Holland and The Deepings said. Naturally, I considered that and other options, but I concluded that a civil enforcement system would not work in practice. I have set out the reasons for that previously, although I am not optimistic that the hon. Gentleman will accept them given the hard line he took in his opening comments, saying that unless I persuaded him, he would press the amendment to a Division. However, I will have another go.
Civil penalties would be enforced in civil courts, which are not geared to dealing with young people in the way that youth courts are. For example, judges in the youth court receive specialist training on dealing with young people, and the court is not open to the general public. The amount of a fine in a youth court is set by the court, taking into account the young person’s means. Persons under the age of 18 may be sued in civil courts, but there are complex rules under part 21 of the Civil Procedure Rules 1998, such as the requirement in most instances to be represented by a litigation friend. In addition, although debts may be enforced using civil recovery methods, such as recovery by bailiffs, in practice such methods are rarely used against people under the age of 18. The local authority would have to pay a court fee to pursue the civil enforcement method, which also might not be appropriate in practice, and would leave the authority with mounting costs. Court fees and costs are added to the debt in the civil courts, which does not happen with a fine in the youth courts.

Nick Gibb: So because English law has developed over the centuries to protect young people against the rigours of the civil court procedures, the Minister wants to use the even more rigorous criminal law?

Jim Knight: I am saying that we have a specific youth court which is trained and configured around the needs of young people being brought to justice.
I have previously reassured the Committee that the offence in the clause would not be a recordable one and that the conviction would be spent after two and a half years. Although I agree that it is important to ensure we have explored all the options in relation to enforcement, civil court proceedings and subsequent enforcement in the civil courts do not present a realistic means of ultimately enforcing attendance notices. I therefore ask that the amendment be withdrawn.
Amendment No. 81 removes the provision for a fine in the youth court, but leaves it unclear what the consequences of committing an offence under the clause would be. It is important for the effectiveness of the new requirement, and to avoid confusion, to set out clearly the consequences of refusing to participate and failing to comply with an attendance notice. Accepting the amendment would reduce that clarity.
Proceedings in the youth court will always be the last stage of the enforcement process, but we need to make that last stage clear from the outset. A person found guilty of the offence under the clause will be liable to a maximum level 1 fine on the standard scale, which is the lowest category available. Currently, level 1 is a maximum of £200, with the actual amount in each case being decided and fixed by the court in the light of individual circumstances and sensitivity to issues for young people. The maximum of a level 1 fine provides protection for young people by putting an upper limit on the penalty a youth court can impose. Without that, there would be no indication of how such an offence might be dealt with and the penalty imposed could be more severe.
Financial support provided to young people in this context is principally the education maintenance allowance, but that is obviously currently conditional on participation in education or training. so I am not sure how we can introduce something else that is conditional in the way that the hon. Member for Yeovil suggested. We have explored whether to take benefits away, but very few young people satisfy the criteria for benefits—unless they are in extreme hardship—so I am unhappy about the idea of an enforcement system that is based on benefits.
I hope that that helps the Committee and that the amendment will be withdrawn.

David Laws: I am rather disappointed with the Minister’s response. I thought the ideas that I advanced on behalf of Rainer were so convincing that he would want to go away and reflect. In the light of that response, I might want to press amendment No. 81 to a Division.

John Hayes: Again, we have heard a weak case from the Minister. The essence of his argument is that the civil system is not appropriate to deal with young people so, as my hon. Friend the Member for Bognor Regis and Littlehampton suggested, the Government are going to use a still less appropriate set of procedures. The difference is that the option preferred by the Minister will leave the young person with a criminal record. That is what it boils down to. A number of the most disadvantaged and challenged young people, who we are trying to encourage back into learning so that they will return to civil society and hopefully obtain employment, are going to be put through a criminal procedure. That argument does not stack up.
A reasonable person, looking on objectively from outside the orbit of the Committee, would scarcely believe that a Parliament was going to put people through a criminal court for not turning up at college. That is what it boils down to—that the Government believe in such a policy. Yet again, I urge the Minister to reconsider.

Angela Watkinson: Does my hon. Friend share my concern about enabling a fine of up to £200 to be imposed on a person who is highly unlikely to have any financial means? What about the effect that that might have on their intention of seeking employment, given that the fine outstanding would be attached to future earnings?

John Hayes: We know how such a fine might be paid ultimately, because the explanatory notes on the Bill made that clear: it could be paid through a deduction of money from subsequent earnings, and I guess it could even mean seizing people’s assets, although I do not know if a young person would typically have any assets. However, it is, as my hon. Friend said, curious to the point of being bizarre that we are going to consider taking 17 and 18-year-olds, who may be acutely disadvantaged, and put them through a criminal process. As I said, that does not stack up, because it is not reasonable.
The Minister went on to say, as justification, that going through the civil procedures would cost the local authority money. Given that he has told us that it will only happen in a small number of cases, that is not the most powerful of arguments to draw from his armoury. Because it will cost the local authority a few bob, it is better put those young people through the criminal courts instead.
We heard a series of pretty unconvincing arguments in response to what was a measured and reasonable case for sensible amendments that would improve the Bill. On that basis, I am inclined to press the matters to a vote and to test the Committee’s will. Those who vote should remember this: if they vote for the amendments, they will be accepting the advice, given in evidence to the Committee, of those who work closely with the sort of young people that I have described; if they vote against the amendments, they will be voting for criminalising desperate and vulnerable young people.

Jim Knight: I remind the hon. Gentleman of the 10-stage process of enforcement. That is not something we would enter into lightly. The notion of people being criminalised for not turning up to college is clearly nonsense. That would never be a consequence of not turning up, but would only come into effect if a young person actively refused to participate, without reasonable excuse and after all the support and all the other stages had been gone through. I could go on, but interventions must be short.

John Hayes: I do not doubt for a moment that the Minister is honest in his determination to ensure that such action is the last resort. I do not challenge the idea that the 10-stage process will, for the most part, allow young people to participate who have not done so thus far. However, if the Minister is so sure about that, and without anticipating our next debate, I wonder—I am only guessing—why I feel in my heart that he is unlikely to accept the amendment that means that this offence will not be part of a police record. If the Minister does not want young people to be branded as criminals, he has a chance—
 Jim Knight rose—

John Hayes: I give way. I hope that the hon. Gentleman will not persuade me to divert my attention from the amendments to another group that may come later.

Jim Knight: I wish to remind the hon. Gentleman that I told him that the offence is not recordable.

John Hayes: We will deal with that matter when we debate the next amendment. I am sure that you will quickly challenge me, Mr. Bercow, if I attempt to do so now.
As I said, I am minded to divide the Committee on the amendment. I suspect that the debate will continue. I implore the Minister, who is an eminently reasonable man, to reconsider whether we want to go down the road of using criminal sanctions in pursuit of our shared aims: to inspire a thirst for learning in young people, to encourage participation and to increase employability.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

John Bercow: The hon. Member for Yeovil signalled that he would like a separate vote on amendment No. 81. I assure him that there will be an opportunity for that. As he noted, the amendment in question amends another clause and will be taken at the appropriate time—or rather, it is to the same clause, we have not reached it yet.

David Laws: I beg to move amendment No. 80, in clause 45, page 24, line 29, at end insert—
‘(2A) It is a defence for a person charged with an offence under subsection (1) to show that he or she is—
(a) in employment,
(b) in treatment for a serious medical condition,
(c) caring for a family member, including as a parent,
(d) terminally ill, or
(e) unlikely to benefit from the service offered.’.
Anticipating that the Minister would not give ground to the previous amendment, we have tabled backstop amendment No. 80, which I am sure the Minister will agree to. The amendment would make it clear that if a person charged with an offence under subsection (1) could show that they belonged to one or more of the categories listed in the amendment, that could be used as a defence.
My hope—my certainty—is that the Minister would not want to impose a fine on somebody in any of those categories. The categories include persons who are already engaged in employment. We are therefore not talking about a young person who is determined to be disengaged from the labour market or education and training, but rather somebody who has got off their backside, found a job, and is learning useful skills. I am sure that their employer would be worried if that person were dragged through the measures envisaged in clause 45, which might end up in their having a criminal record.
The amendment details a number of other circumstances in which I am confident the Minister would not want to impose sanctions. I anticipate that he will say that all of those issues will be taken into account by the attendance panels, which are extremely reasonable, and that it is unthinkable that members any of those groups could be fined, as that would be completely unreasonable. However, if that is the case, I invite him to accept the amendment as a backstop measure that would prevent the penalty process from being extended to those whom we would most assuredly want to protect from that process.

Jim Knight: We believe that all young people have something to gain from participating in education until they are 18, and we do not believe that any group of young people should be treated differently from the outset, as that would risk their being given a second-class offer.
It may be difficult—and in some cases impossible—for some young people to participate, and we have built flexibility into the system so that those cases can be judged individually and the appropriate allowances made for their circumstances. However, many young people in difficult circumstances, such as those who have a serious medical condition or caring responsibilities, do participate, and that should be encouraged. We will do everything we can to remove the obstacles and difficulties that might prevent them from participating.
There are series of safeguards—the hon. Gentleman anticipated that I would say that—built into the system to ensure that an attendance notice will not be issued if it is not appropriate, and that the local authority will not be able to act if the young person has a reasonable excuse for not participating, as outlined in clause 39. I set out our intentions in some detail in my letter to him regarding what is likely to be considered a reasonable excuse. The groups that he specified in his amendment, with one exception, will not have enforcement action taken against them.

David Laws: The Minister said, I believe, that nobody in categories (b), (c), (d) and (e) would have enforcement action taken against them or incur penalties under the proposals. Is he confident that that is correct?

Jim Knight: I am confident enough to say that I find it difficult to conceive of circumstances in which enforcement action would be taken against those groups. I cannot absolutely rule anything out. There might be someone in those circumstances who is offered every reasonable support and could be judged able to participate if they took advantage of all that support. As things stand, I cannot envisage the circumstances in which that would happen, but I do not want to rule out enforcement action if someone in some of those circumstances deliberately failed to participate.
We do not believe that being employed should be a defence for not participating; that would not be considered a reasonable excuse. We recognise that work can be a valuable experience for young people at this stage, but we believe that they should continue their education and training too. We discussed that at considerable length in earlier sittings. Education and training help young people to move on to successful and fulfilling lives and have wide benefits for the individual and society. It is critical that all groups of young people have the same opportunities and expectations of success. In the light of my reasoning, I hope, although I am not optimistic, that the hon. Gentleman will withdraw his amendment.

David Laws: I was excited because I thought that I had wrung a valuable concession from the Minister. I believe that the record will show that he said that nobody who fell into the (b), (c), (d) or (e) categories would be dragged through the penalty process. Of course he cannot give us that assurance, because there is no such protection in the Bill. It is left entirely to guidance that we have not seen to set out how somebody will be treated who has a serious medical condition, is caring for a family member, is terminally ill, or is unlikely to benefit from the service offered. When the Minister was put under pressure on that point, he quickly rode back and said that this is all fudge and mudge. Great puffs of smoke went up in front of him and suddenly all of those great reassurances did not amount to, as the Americans say, a hill of beans—as we say in Somerset, Ohio and such places. On a reassurance scale, I think that my reassurance level is about one out of 10.
Even worse than that, we heard that the Minister can envisage that people in employment, slogging their guts out day in, day out and learning all sorts of useful skills could, because of some jobsworth Minister—referring back to the his comments the other day—end up being dragged through the courts and receiving a penalty and a criminal record. That is so monstrous and so confused that I feel I have to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived.

Amendment proposed: No. 81, in clause 45, page 24, leave out lines 30 to 31.—[Mr. Laws.]

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived.

John Hayes: I beg to move amendment No. 37, in clause 45, page 24, line 31, at end add—
‘(4) An offence under this section shall not be regarded as a recordable offence under the National Police Records (Recordable Offences) Regulations 2000 (S.I. 2000/1139).’.

John Bercow: With this it will be convenient to discuss the following amendments: No. 82, in clause 45, page 24, line 31, at end add—
‘(4) A conviction under subsection (1) shall not be recorded under the National Police Records (Recordable Offences) Regulations 2000 (S.I. 2000/1139) after the date of the person’s 18th birthday.’.
No. 178, in clause 45, page 24, line 31, at end add—
‘(4) An individual who receives a penalty under this section shall not—
(a) receive a criminal record if none already exists,
(b) have this penalty notice added to their criminal record if one exists.’.

John Hayes: It may be that the amendment in my name and those of my hon. Friends and, indeed, the amendments in the name of the hon. Member for Yeovil and his hon. Friends are superfluous, given what the Minister said a few moments ago. Nevertheless, just in case I misinterpreted his remarks, I will set out our intentions clearly. The debate on clause 45 has focused on the fact that non-compliance is an offence liable to a fine. That would be bad enough, but we are moving these amendments because we are anxious about the fact that young people may also be regarded as having committed a recordable offence that might figure on national police records, although I think that the Minister has suggested that will not be so. If that is the case, he will no doubt relieve us all when he replies.
It is fundamentally important that we do not stigmatise young people who, as I said earlier, will often be vulnerable and challenged. That point was made powerfully to us by the British Youth Council in its advice.

Jim Knight: It might help the Committee and speed things up if I state categorically that the offence will not be a recordable offence. It will not be recorded automatically on the police national computer and will not be routinely disclosed in Criminal Records Bureau checks.

John Hayes: I anticipated that from what the Minister said earlier, and it is good news. However, we would do the British Youth Council a disservice if we did not flesh out its concerns, because they relate to the broader principles that we have been debating. It says:
“Young people at risk of dropping out need support not a criminal record. The ‘attendance panels’ could still operate...without the recourse to a penalty notice further along the line.”
It describes the proposals as potentially “demonising young people” and as perpetuating the negative stereotype that Ministers have elsewhere said that they wish to counter. I am relieved by the Minister’s intervention, which no doubt he will reaffirm shortly, but he will understand why we feel so strongly about the issue. Our cause is the most vulnerable citizens, because we are the champions of social justice, as you know, Mr. Bercow, perhaps better than most.

David Laws: I was temporarily stunned by the hon. Gentleman wearing the mantle of championship of social justice. Perhaps the book about liberalism that he was reading during one of my speeches the other day has influenced him.

John Hayes: I do not want to be unkind to the hon. Gentleman because I know that he is a thoroughly decent chap, but his grasp of these things does seem a bit limited. Compassionate conservatism is born of social justice. It was our party that throughout the 18th and 19th centuries, in the form of people such as Wilberforce, Shaftsbury, Elizabeth Fry and others, did so much to advance social justice, when his party still had members who wanted to put boys up chimneys.

John Bercow: Order. At this stage I make simply two observations. First, it must of course be recognised that the hon. Member for South Holland and The Deepings would be reading something only if and in so far as it related to the treatment of matters pertaining to the Bill or amendments thereto. Secondly, although the hon. Gentleman’s philosophical musings are always entertaining to the Committee, they are sometimes at best tangentially related to, and at worst wholly divorced from, the Bill.

David Laws: I am grateful to you, Mr. Bercow. I will not be put off by the hon. Gentleman’s comments. I am delighted that the Minister is so enthusiastic about the amendments. We simply need to ask which of the three he is prepared to accept and put in the Bill. As soon as he has let us know that, we can safely withdraw the amendments.

Jim Knight: I shall be brief. As I set out for the Committee when giving evidence on 29 January, in response to question 475 from the hon. Member for Bognor Regis and Littlehampton, only offences that are punishable by imprisonment or specified in regulations—probably the regulations mentioned in two of the amendments that we are discussing—are known as recordable offences and are automatically recorded on the police national computer. The offence of failure to comply with an attendance notice is not punishable by imprisonment and we have no plans to specify it in the relevant regulations.

Nick Gibb: But is it beyond possibility that, in a few weeks’ time, after the Bill has received Royal Assent, a Minister could, through secondary legislation, add the offence to the list included in the National Police Records (Recordable Offences) Regulations 2000?

Jim Knight: I can tell the hon. Gentleman, on behalf of the Government, that we will not specify the offence in the relevant regulations. It will therefore not be a recordable offence, will not be recorded automatically on the police national computer and will not be routinely disclosed in CRB checks.
It is true that young people convicted of the offence of failing to comply with an attendance notice without any reasonable excuse would, for a short period, have what we would understand as a criminal record—but “criminal record” is not a phrase that exists in law, which is why I could not accept one of the amendments. The main factor here is the length of time in which convictions must be disclosed—the short period of time in which someone has what we would understand in common parlance as a criminal record. As I have already confirmed, the rehabilitation period for a fine imposed by a criminal court on anyone under 18 is two and a half years. After that the conviction will be “spent” and will not have to be disclosed. In effect, that means that the young person will have no criminal record after that point.
If a young person had previously been convicted of a recordable offence and had that conviction recorded on the police national computer, that would be a separate matter; it would make no difference to this position. The offence of failing without reasonable excuse to comply with the requirements of an attendance notice would still be non-recordable.

Nick Gibb: Do I understand, therefore, that a young person who had finished his education or training, but had been through the process and committed an offence under the clause, would have to disclose that offence in any job application made while he was 19 or 20, and perhaps even approaching his 21st birthday?

Jim Knight: Yes, if it was less than two and a half years from the date of the conviction. I made that perfectly clear in evidence. I have been consistent. I think I have said that the latest age at which the measure could apply would be 21. I hope that I have been extremely clear. I urge the hon. Members not to press their amendments.

David Laws: Our sense of reassurance did not last long. We were looking for two bits of reassurance. First, we sought assurance that our proposal was so welcome and so much in line with the Government’s thinking that it could merely be plopped immediately into the Bill at the relevant place, in which case it would only be a matter of choosing between the two excellent amendments and deciding whether the hon. Member for South Holland and The Deepings or I should gain the credit. However, we now discover from the Minister that the reassurance that he is offering us is not as great as we thought.
Secondly, following the questioning of the hon. Member for Bognor Regis and Littlehampton, we discover that young people over the age of 18 will, for a period, have to declare the convictions for these offences when seeking employment, which is surely not desirable and could be damaging to their employment prospects. I cannot see that the position that the Minister envisages is satisfactory. I do not know if the hon. Member for South Holland and The Deepings will want to press his amendment No. 37, but I will press my amendment No. 82 if there is no indication of the Minister having a sudden change of heart.

John Hayes: I moved the amendments in a conciliatory tone, saying that they might be superfluous. I had been gulled or persuaded by the Minister that they were indeed superfluous—until he rose to respond to the debate. However, when he did respond, it appeared not that the amendments were superfluous, but that they contradicted the Government’s position in as much as young people are going to be on record, albeit only for two and a half years. However, the two and a half years that the Minister speaks of could be critical to a young person emerging from training and acquiring a job.

Jim Knight: It may be semantics, but those young people will not be on record in that they will not be on the police national computer, or be discoverable by CRB check. They will simply have an obligation to disclose for that two and a half years.

John Hayes: That is a fair semantic or technical point, but it does not in any way dilute the power of the argument that those young people, in disclosing what the Minister casts aside with a degree of complacency, would jeopardise their chances of achieving success—

Sitting suspended for a Division in the House.

On resuming—

John Hayes: To continue my remarks—achieving success, perhaps for the first time, by taking those first faltering steps into the world of work. What prospect of that could there be if they are dogged by the necessity of declaring that they have been convicted? The irony is, of course, that, following that conviction, they might have participated in purposeful work or training for more than a year. However, because the requirement to declare their previous folly remains for two and a half years, I suspect they would be unattractive to an employer even so.

Jim Knight: The hon. Gentleman has extensive worldly experience, including as an employer. If an applicant came to him who was perfectly adequate for the job in hand, and he asked the individual whether he had a criminal record and that person said, “Yes, I had a problem but I now want to come into work,” would the hon. Gentleman hold that against that individual and not employ him?

John Hayes: That is an unfair question to put to an untypically philanthropic person. The issue is not what I would do: it is what others might do. It is true, of course, that some employers would take a more generous view than others, but notwithstanding that, we heard from witnesses at the evidence sessions that a degree of stigmatisation will occur. In the words of the British Youth Council, people will be demonised.
A few moments ago, my hon. Friend the Member for Bognor Regis and Littlehampton suggested to me that there is another risk. If we do not put these matters on the face of the Bill, a Government even more draconian than the present one, with a Minister even less sensitive to our arguments than the Minister here today, might, through a statutory instrument, sharpen the knife still more. Our aim is to fight for the interests of all those young people who we all want to encourage back to learning and work.

Angela Watkinson: There may well be employers who would be minded to offer employment to a young person in these circumstances, but who were prevented from doing so by the constitution or regulations governing the organisation they represent.

John Hayes: That is true. It may well be that even the most philanthropic employers will be inhibited in the way my hon. Friend describes.
Because of our doubts about the Government’s good will, because of our fear that the measure will grow into an even more vicious monster than it currently is, and because of our anxiety to support the representations we have had from the people who work the most closely with vulnerable young people, I am inclined to press the amendment, even though I acknowledge that, in its current form, it is imperfect, as is the amendment in the name of the hon. Member for Yeovil. What we actually want to do is deal with the matter of disclosure, which has risen in our sights as a result of the Minister’s admission that these young people are to be labelled for two and a half years. We will press the amendment to make the very strong point that I hope has been transmitted, albeit imperfectly, in these few brief words.
 Mr. Laws rose—

John Bercow: I was proposing to move to a vote. Mr. Laws signalled that he wanted to press for a Division on a later amendment, which he will have the opportunity to do. However, if he wants very briefly to comment at this point, I will happily listen to him.

David Laws: I am grateful for that, Mr. Bercow, given the exchanges we have just had.
There is a danger at this late stage of the day of glossing over an important issue. What the Minister’s comments have highlighted is that there is a risk that young people will have to declare what will, in essence, look like a criminal record—an offence. I think the hon. Member for South Holland and The Deepings is right to say that there are employers who will be very concerned about that. I have a constituent who has a record of low-level offences, which is having a major impact on her ability to take a job which is not unrelated to the offences she committed.
Why would the Government want a situation in which these offences had to be disclosed for two or two and a half years? Is it their view that disclosure is useful and sensible, or is it simply an inadvertent by-product of the way in which the Bill will operate? The Minister’s implied that a record of such offences would not matter either way to an employer. If the Government do not think it is useful, why not accept that it would be sensible to amend the Bill, as we are trying to do—perhaps imperfectly—to ensure that the information will not have to be disclosed for that two-year period? If that were to be done, it would address our concerns. I also very strongly endorse the comments made by the hon. Member for South Holland and The Deepings that we want this provision on the face of the Bill. It is not at all satisfactory to have it dealt with elsewhere.
I have a final point to make. The Minister may want to respond and indicate why he wants disclosure to be obligatory. If he is not prepared to respond, his position is highlighted in its full weakness, and we shall be even more inclined than we already are to press the amendments. If he can, will he say whether amendment No. 178 would in any way deal with our concern? Is he essentially saying that the words “criminal record” would not have a meaning in law that would have any application to these circumstances? I think he is, and that he is indicating—as the hon. Member for South Holland and The Deepings has said—that we may have to table other amendments on the matter at a later stage. For us, that would leave an unsatisfactory state of affairs.
I think the record will show that the Minister has not been willing to defend the Government’s position.
 Jim Knight rose—

David Laws: I have tempted the Minister out.

Jim Knight: I am grateful to the hon. Gentleman for allowing me to intervene, even though it takes up time and we have plenty to do. I felt that I had made all the arguments I could. In the end, the disagreement between us will be about whether there is some kind of incentive for people not to break the law in having, for a brief period, a modest level of conviction attached to them which they ought to disclose if asked. That is the principal disagreement.

David Laws: The Minister is in danger of standing his own argument on its head. He is now praying in aid that a young person might be incentivised to comply with the legislation through fear that he or she would have to reveal the conviction at a later stage or declare their record, which could damage their employment prospects. All that has served to do is highlight our concerns even further.

Jim Knight: All I am saying is that there is a disincentive effect attached to going through the criminal process. That is an extremely common theme of our deliberations in this House.

David Laws: That may be a slightly different point. It does not necessitate the requirement to declare for that period of time, which is our concern.

John Hayes: The hon. Gentleman makes the point I was about to make. The Minister now says that the disincentive is going through the criminal process. A moment or two ago, he said that the disincentive was having to declare this matter subsequently. That cannot possibly be a disincentive, because the young people concerned, as we have heard from all the experts, are already rejecting authority regularly. This provision will simply make them suspicious of and hostile to authority to an even greater degree.

David Laws: I entirely agree. A powerful case has been made for the amendments.

John Hayes: I am delighted to say a further word on this subject, although I do not want to test the Committee’s patience too long. There may be members of the Committee who have been convicted for parking on a double yellow line or speeding. I was inclined, impertinently, to ask hon. Members to put their hands up, but that would be to embarrass my colleagues. Those things are not declarable in the way that the Government now suggest the offence under the Bill should be.
We have heard a very poorly structured argument. We have been told that the measure is principally a matter of providing disincentives, but when we spoke about the tension between civil action and criminal action, we were told that it is principally about avoiding the inconvenience of going through the civil system. Then we heard that the disclosure rather than the offence was critical in—presumably—intimidating people into participating. None of that bears any relation to and can in any way be squared with the advice we had from the experts during the witness sessions. I defy the Minister to suggest one witness who would support the thrust of the argument that he has made in the past few minutes.

Jim Knight: All I will clarify is that disclosure is a function of the offence being a criminal offence. That is all it is. We are not creating the requirement to disclose for the sake of this offence.

John Hayes: Parking on a double yellow line is a criminal offence, as is speeding at 32 mph in a 30 mph zone, yet they are not disclosable matters. People who commit such offences are not treated in the way that the Minister wants to treat young people convicted of the offence under the Bill. We will have to press this matter to a Division, not because our amendment is perfect, but because it will send out a message that we think that it should be clear in the Bill that young people should not be stigmatised in the way that we suspect they may be if the clause is not amended.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived.

John Bercow: The hon. Member for Yeovil requested a separate Division on amendment No. 82, but he is now shaking his head. I am sure that he will clarify.

David Laws: Mr. Bercow, with your permission and given that we have divided on an amendment that is very similar, I do not wish to press amendment No. 82 to a Division.

John Bercow: I am grateful to the hon. Gentleman.

Motion made, and Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 5.

Question accordingly agreed to.

Clause 45 ordered to stand part of the Bill.

Clause 46

Restrictions on proceedings for offences under section 45

Nick Gibb: I beg to move amendment No. 38, in clause 46, page 25, line 13, after ‘45’, insert ‘or an advocate of that person’.

John Bercow: With this it will be convenient to discuss the following amendments: No. 83, in clause 46, page 25, line 13, at end insert—
‘(6A) In making representations to the attendance panel the person alleged to have committed the offence shall be entitled to advocacy.’.
No. 87, in clause 46, page 25, line 17, at end add—
‘(9) The Secretary of State must by regulations make provision setting out the rules of the proceedings of the attendance panel in relation to its functions in subsection (6).’.

Nick Gibb: Before proceedings can be instituted against a young person for failing to comply with an attendance notice, the local authority must consult an attendance panel. The panel has to recommend to the local authority that proceedings be instituted. However, as we have discussed, subsection (6) requires the attendance panel first to invite the young person to make representations to it. The process contains a significant number of safeguards before criminal proceedings are started, but for some young people, even those safeguards might not be enough to avoid an injustice.
We have already debated the evidence of Barnardo’s about further safeguards such as that advocacy should be available where it is needed to enable a young person’s voice to be heard at the attendance panel at every stage of the process, especially for those with learning or communication difficulties. I will not repeat those arguments, except to say that even young people without special needs are inexperienced in putting their own case and may be intimidated by proceedings, regardless of how informally they are conducted.
Amendment No. 38 would put into subsection (6) a requirement that the attendance panel invite the young person or an advocate to make representations to it. That is all that I will say about that amendment. Amendment No. 83, tabled by the hon. Member for Yeovil, makes a similar point.
Amendment No. 87 would require that the Secretary of State set out the rules of the proceedings of the attendance panel in regulations. In particular, it refers to the hearing of representations from the young person against whom it is considering instituting criminal proceedings. As the panel will have a quasi-judicial, or even judicial, function along the lines of a grand jury in the United States, it is important that the proceedings follow the rules that apply to tribunals and courts. It should not necessarily follow the rules of formality, but it should certainly follow the rules of evidence. It should be made clear, for instance, whether the young person will be able to question the panel or the local authority that is instituting the proceedings. Clarification from the Minister on how the panels will operate would be very helpful.

David Laws: I shall say no more other than that amendment No. 83 was tabled by the Liberal Democrats and that we want the Government to put a commitment in the Bill that gives the person an entitlement to advocacy for the reasons that we discussed earlier. It will be interesting to hear the Minister’s response to that proposal. Given that he considered for a while the possibility of granting advocacy for a particularly vulnerable group of young people, we are interested to hear his views about the wider cohort.

Jim Knight: When the attendance panel is considering whether a local authority should be able to begin proceedings against a young person, it is required to invite the young person to make representations to the panel. Under amendment No. 38, when considering that, the attendance panel would have to invite either the young person or an advocate for the young person to make representations to it. Amendment No. 83 would entitle the young person to advocacy in making those representations.
We are placing the duty to participate on the young people, so it is right that they should always be invited to make representations. I do not believe that, in reality, anyone would disagree with that. I very much agree that the young person should be able to bring someone with them to the panel if they want to, and we shall allow for that in regulations. The panel will also invite other people who understand the young person’s circumstances to make representations. Both those and the young person’s own explanation will be important in helping the panel to understand the individual circumstances of the case and the steps that have been taken to help, support and re-engage the young person, and so decide whether everything possible has been done.
How the panel invites representations to be made to it will be set out in regulations, as amendment No. 87 proposes. Clause 43(3) makes provision for that. It is appropriate to put the detail of the operation of the panel in regulations and to take time to consult on that. With those assurances, I hope that the hon. Member for Bognor Regis and Littlehampton will withdraw the amendment.

Nick Gibb: I take the Minister’s point about the wording of amendment No. 38 and the use of “or”, so I shall not press that amendment to a Division. I am also reassured by the hon. Gentleman’s firm statement that he will include in the regulations a requirement that advocates will be permitted to accompany a young person appearing before an attendance panel. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Laws: I beg to move amendment No. 183, in clause 46, page 25, line 17, at end add—
‘(9) The proceedings may not be instituted unless the local education authority is of the opinion on reasonable grounds that they have exhausted all other options for encouraging the young person to comply with their attendance notice.
(10) The Secretary of State shall make regulations providing a definition of “all other options” under subsection (9), setting out the circumstances at which this stage may reasonably be considered to have been reached.
(11) In determining whether all other options have been exhausted with an individual young person the local education authority must have regard to the statutory definition provided by the Secretary of State under subsection (10).’.
It is clear what the amendment would achieve. Proposed new subsection (9) is clearly an attempt to ensure that, given the seriousness of the measures that we are considering, every possible attempt has been made to engage with the young person and to allow them to comply. Proposed new subsection (10) would require the Secretary of State to make regulations that provide a definition of “all other options” to ensure that it is clear to local authorities what obligations they must pursue before deciding that a person is not compliant. I should be grateful for the Minister’s view on the amendment.

Jim Knight: I put it to the Committee that the amendment is unnecessary because the attendance panel is the safeguard that ensures that the local authority has exhausted all other options for encouraging the young people to comply with their attendance notice. It does that by intervening at two critical stages in the process. It has the power to dismiss or confirm the attendance notice on appeal, and it must consider the young person’s case again if a local authority wishes to begin proceedings in the youth court. In both instances, the panel is the mechanism that would ensure that the young person’s case does not progress to the next stage of the enforcement process, unless it considers that all other options for encouraging the young person to comply with the requirement to participate have been exhausted. On that basis, I hope that the hon. Gentleman does not press the amendment to a Division.

David Laws: Given that the Minister has said that he is more or less happy with everything in the amendment, we would have preferred that he had accepted it. However, given his assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 ordered to stand part of the Bill.

Clause 47

Failure to comply with attendance notice: penalty notice

Nick Gibb: I beg to move amendment No. 40, in clause 47, page 25, line 38, at end insert
‘provided that such penalty does not exceed £200,’.

John Bercow: With this it will be convenient to discuss amendment No. 175, in clause 47, page 26, line 20, at end add—
‘(6) Penalties issued in accordance with the provisions of this section shall not exceed £50.’.

Nick Gibb: The interaction between clauses 45, 46 and 47 seems to be rather complicated. I may well not have understood it properly, in which case I hope that the Committee will forgive me. My understanding is that clause 45 states that a person who fails to comply with an attendance notice is guilty of an offence and is liable to a fine not exceeding level 1 on the standard scale, which is £200. Clause 46 prevents a local authority from taking action under clause 45 until a penalty notice under clause 47 has been issued and not paid. It states that the amount that can be imposed by a penalty notice is to be determined by regulation. Clause 47(4)(b) states that regulations may make
“provision as to the amount of any penalty and the time by which it is to be paid”.
Therefore, the restriction of the fine to £200—level 1 on the standard scale—that applies to clause 45 appears not to apply to clause 47. It would therefore be helpful if the Minister could set out his intentions for the amount and the time allowed to make the payment that will be put in the regulations made under clause 47(4)(b).
Barnardo’s has raised its concern about the amount of any penalty under clause 47 and wants there to be safeguards. In its briefing to the Committee, it stated that it wanted safeguards that the
“level of the penalty notice...is set at an amount that reflects the level of financial support available to the poorest young people...and that the fine will not increase if not paid within the specified time limit.”
Barnardo’s said that it
“is concerned that escalations in fines for non-payment are most likely to be incurred by those least able to pay.”
Assurances from the Minster on both points—the level of the fine and an assurance that fines will not escalate for non-payment—would be helpful.
Amendment No. 40 would set the level of the fine at £200 as a probing amendment to extract the Minister’s intentions. The Children’s Rights Alliance said that fines can be counter-productive and might lead many young people “into debt and crime.” It also stated that this will be
“yet another trap door through which the most alienated children may be brought into contact with the criminal justice system and spiral into debt.”
Finally, the Local Government Association has expressed its concern about clause 47, saying:
“From a practical enforcement perspective, this provision assumes ability and/or willingness to pay, apart from other matters, notably costs to local authorities pursuing the payment of penalties.”
It would be helpful to the Committee if the Minister answered those concerns in his response.

David Laws: Amendments Nos. 40 and 175 deal with similar issues and are living proof that life would be cheaper and people would be better off under the Liberal Democrats. Although the hon. Member for South Holland and The Deepings talked about social justice earlier, here we have proof that, were the Liberal Democrats to get their way, instead of setting the maximum level of the fine at an extortionate £200, we would set it at the more modest level of £50.
That is a way not only of trumping the Conservative party on the amendment paper, but of drawing attention to the fact that the income of young people is often very slight indeed. The level of benefit paid to young people has been gradually eroded in relation to average earnings over many years. There are often differentials between the levels of benefits paid to young people compared with those paid to adults. Although £200 might not sound like much to many of us in this place, it is a lot for many of the young people who will be affected by the provision. That is why I would suggest to the Minister that the Government should be contemplating a much lower maximum penalty. I would like to hear the Government’s thinking on the matter.
I would also like to support the comments made and the questions raised by the hon. Member for Bognor Regis and Littlehampton. He was good enough to indicate that he was expressing some of the concerns raised by Barnardo’s about the fact that the fines and the way they will operate will be left to regulation. Therefore, we do not know what the absolute level will be or how those fines will be recovered from people. The hon. Gentleman raised most of the issues covered in the Barnardo’s memorandum and he specifically asked for the Minister’s confirmation of what he has in mind for the maximum amount for the fine. I second his request for clarification on that matter. He also asked the Minister to indicate whether the fines will escalate over time if they are not paid; that was the second question asked by Barnardo’s.
The hon. Gentleman referred to two other points, but he did not ask the Minister specifically to clarify them. I would be grateful if the Minister responded. One of those points was whether there would be a sliding scale of penalty notices based on a young person’s income. I do not know whether the Government have ruled that out, or are considering that it would be useful not merely to leave that to guidance. The final point on which I request a response from the Minister is whether young people would be able to make the payments in instalments, and whether they would be financially penalised for doing so.
It is evident from the representations made by the local authorities on the clause that they are worried about taking large amounts of money from this group of young people, how the fines will operate, how collection will operate, and what the cost of collection will be. They are acutely aware of the low incomes of the young people we are talking about. Although the Minister will be tempted to say that that it is all up to guidance and is a minor administrative matter, it is not. It will be fundamental to how the Bill operates, how just or unjust it is, and whether young people will be able to pay the penalty notices or will be dragged further in to the criminal justice system.

Jim Knight: I will try to set out as quickly as I can but in sufficient detail how some of the process will work, as legitimate questions have been asked.
The clause provides the power for the Secretary of State to make regulations about penalty notices to be issued in the event of failure to comply with an attendance order. The regulations relate to the form and content of the penalty notices, their amount and the procedures for them to be issued and paid. The scope of the regulations is limited to the operation and administrative details of issuing a penalty notice, and will therefore be consulted upon.
We will consider having a sliding scale, but based on subsequent penalties rather than income. It is worth saying that it would be dependent on a young person being in employment and so able to afford to pay the penalty notices continuously—going through the process and paying them off one after another. The penalty could potentially be raised with each subsequent occasion that they have gone through the process and paid the penalties off. However, we have no plans for the amount to increase with non-payment, as the case would simply proceed to the next step, for obvious reasons.

Oliver Heald: Will the Minister tell us roughly what the rate of payment is for penalty notices generally? Is it correct that about 60 per cent. of them are paid?

Jim Knight: The hon. Gentleman may be correct. In the back of my mind is a figure of around two thirds, but I will correct that if I need to.
The regulatory power will be subject to the negative procedure. The regulations may also make provision for penalties of different amounts to be payable in different cases or circumstances, as I have just set out. The amount of the penalty must be prescribed in regulations to provide the flexibility to increase the amount to respond to changing costs, rather than put in primary legislation.

Nick Gibb: Could that not be covered by inserting “level 1” or “level 2” on the standard scale, as is done in clause 45?

Jim Knight: I am not aware of whether there are standard levels for fixed penalty notices. If wisdom comes me on that point, I will pass it on. The levels set are in respect of the youth court, which is a criminal court, as we have discussed. There are therefore levels that apply to it.
It appears that 37 per cent. of 16 and 17-year-olds issued with fixed penalty notices do not pay them, according to the Ministry of Justice. I hope that that helps the hon. Member for North-East Hertfordshire.

Oliver Heald: It looks as though both the Minister and I were about right. According to those figures, how many young people will not pay these penalty notices and what will happen to those who do not?

Jim Knight: We have made some assumptions on that matter. We have assumed that half of that figure—18.5 per cent.—will not pay their fixed penalty notices; they will subsequently go to a youth court and receive a fine. A lower rate of non-payment is assumed for the reasons that I outlined in relation to fixed penalty notices and attendance notices; those reasons relate to the nature of the offences and the way in which the discussions about support will work.
As I have said, the amount of the penalty must be prescribed in regulations to provide the flexibility to increase the amount to respond to changing costs. The provisions relate to the operational arrangements and so are not specified in the Bill. A similar model is in operation in the case of penalty notices issued to parents of pupils of compulsory school age under section 444 of the Education Act 1996 and section 105 of the Education and Inspections Act 2006.
The figure of £50, which has been used and commented on, was used by the last Secretary of State for Education and Skills when the Green Paper was launched. It has no more status than that. As we consult on the regulations, we will consult on the figure and bear people’s views in mind when the regulations are drafted. It may be a little while before that happens.

David Laws: The Minister mentioned the figure of £50, but I do not understand the point that he is making. Is he indicating that the level of the penalty notice is more likely to be at or around £50 than £200?

Jim Knight: The figure of £50 has been suggested for the fixed penalty notice. The maximum penalty of £200 applies in the youth court. That is currently the maximum penalty on conviction of an offence attracting a level 1 fine. If there is confusion in people’s minds, £200 applies to the youth court and £50 was the figure used by the previous Secretary of State when the Green Paper was launched. Others have suggested, for example, that it could be set at the same level as the weekly educational maintenance allowance. There are some interesting ideas and we will consider them. I hope that that information is useful for the hon. Member for Bognor Regis and Littlehampton and that he will withdraw the amendment.

David Laws: I apologise for detaining the Committee at this late stage, but unless I have missed them, in which case I apologise, I am not sure that we have had the answers to all of the questions that were put to the Minister. We asked whether there will be a sliding scale of penalty notices based on a young person’s ability to pay. I think he said that there will not, but that if people do not pay them, they will rise for those who can afford to pay because they are in employment and will not rise if people are not paying for reasons that are acceptable due to their income.

Jim Knight: I said that the penalty could increase, not if a person did not pay the fixed penalty notice, but if they paid it and subsequently came back before the attendance panel because they continued not to fulfil their duty under clause 2. In that case, they would potentially face a higher fixed penalty notice. Otherwise, they could keep paying off the penalties because they were in employment and could afford to pay off the fines.

David Laws: I am grateful. So, when there are repeat fines to pay, there would be differential treatment of people in employment versus those not in employment?

Jim Knight: I am not saying that there would be differential treatment for people in employment. I used that as example of someone who, because they are employed, could afford to keep paying off the fines. That scenario centres on people who persistently come before the attendance panel for fixed penalty notices but who simply keep paying them off.

David Laws: So for repeat offenders there will, as I understand it, be an ability to pay-related element in the level of the fine?

Jim Knight: It is not an ability to pay-related measure; it is a different rate. We are talking about fixed penalty notices, not sliding penalty notices. It would be a fixed penalty notice, and if the person came back, it would be fixed at a higher level.

David Laws: I am grateful to the Minister for his patience. So his answer is that there would be no separate treatment of any type in the Bill in relation to fines based on ability to pay. I thank the Minister for clarifying that.
I may have missed this as well—perhaps I am not attentive enough at this stage of the day—but did the Minister make any reference to the question of paying in instalments? Whether young people will be able to pay in instalments was one of the concerns raised by Barnardo’s. Also, will the amount payable escalate if the penalty notice is not paid within a certain period of time? That was another general issue on which we wanted clarification; we did not simply want it to turn up in the guidance note without having had any indication at all.
On the first point about the level of the penalty fine, I was a little reassured when the Minister spoke about a lower figure or the amount of the EMA. That indicates that the Government may have a more realistic amount in mind for the penalty than the figure of £200, which is in one of the amendments that we are considering. On that basis, I shall not press my amendment to a Division, but I would be grateful if the Minister was able to clarify the two other points that were raised.

Jim Knight: Perhaps the hon. Gentleman could look at clause 47(4)(c). Regulations may make
“provision as to the methods by which penalties may be paid”.
We can certainly look at whether there are good grounds to allow people to pay by instalments—for example if the attendance panel confirmed the fixed penalty notice and thought that that was appropriate.

David Laws: The Minister is saying that he will consider it, but that the Government have no position on it at the present time. He has not mentioned escalation of the penalty notice over time and about what happens if that is not paid, but I will not press the amendment to a Division.

Nick Gibb: That was an interesting response from the Minister. As I mentioned at the outset, this was a probing amendment to ascertain the likely parameters of the fixed penalty notice. The Minister indicated that the sort of figure being looked at is around £50—perhaps slightly more because of the time that has elapsed since the publication of the Green Paper, but certainly not in the realms of the figures that Barnardo’s was concerned about. That is very welcome.
I was slightly taken aback by the Minister’s assumption that only 18.5 per cent. of people would not pay the fixed penalty notice. In his interventions, my hon. Friend the Member for North-East Hertfordshire made the point, using information obtained from the National Audit Office report, that about 37 per cent. of people do not pay, as the Minister confirmed. That assumption is rather an odd one, but as Alison Wolf has pointed out, there are a number of odd assumptions about cost in the regulatory impact assessment on the measures in the Bill. Given the Minister’s assurances, I shall not press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Gibb: I beg to move amendment No. 39, in clause 47, page 26, line 16, at end insert—
‘(4A) Any provision made under subsection (4)(g) may not include appearance before any court of law other than the Youth Court.’.
The purpose of this amendment is to put into the Bill an explicit prohibition on taking legal action against a young person who does not pay the penalty notice in any court other than the youth court. As the Minister has said, that is the court where the matter will be dealt with. The Government’s document, “Raising Expectations” states in paragraph 4.34:
“If the FPN”—
financial penalty notice—
“is unpaid the local authority could bring the case before the Youth Court, where the penalty on conviction would be a fine... If a fine is unpaid, the Youth Court cannot use custody as a means of enforcing it, although it has a number of other options, including taking the money from wages or imposing an unpaid work requirement.”
It would be helpful if the Minister explained why there is no explicit reference to the youth court in the clause and why he cannot accept the amendment.

Jim Knight: Hopefully, the hon. Member for Bognor Regis and Littlehampton and I can reach an understanding on this. I agree with the intention behind the amendment. I think it right that the most appropriate forum where such enforcement action is required, except in one or two rare cases that I shall specify, is almost always the youth court. Under the current youth justice system, a person below the age of 18 would not appear before an adult criminal court solely because they had failed to pay a fine. The amendment is therefore unnecessary. Enforcement action other than that in the youth court would be taken only where a young person was being prosecuted for other offences alongside the offence of failing to pay a fine.
Magistrates courts may deal with cases that involve people under 18 but only if they are tried with an adult. Young people may appear in the Crown court if they are jointly tried with an adult whose case needs to be heard in that court or where the charge is very serious and the sentencing powers of the youth court are felt to be inadequate. Homicide and rape cases, for example, are always be heard in the Crown court. Because it is right that there should be flexibility in our court system to deal with the most serious offences, or those involving young people together with adults, in courts other than the youth court, I cannot accept an amendment and I hope that the hon. Gentleman will withdraw it.

Nick Gibb: I am sure that that exception could have been incorporated into an amendment to the Bill. However, we have aired the issue, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 ordered to stand part of the Bill.

Clause 48

Penalty notices: appeal arrangements

Nick Gibb: I beg to move amendment No. 89, in clause 48, page 26, line 27, leave out ‘Regulations may’ and insert
‘The Secretary of State must by regulations’.
The purpose of the amendment is to ensure that regulations are introduced that direct both the procedures for making appeals and the hearing of such appeals. As drafted, the clause says that the Secretary of State “may” make regulations about the procedures for appeals and the powers of the attendance panel in hearing appeals. The Secretary of State could therefore decide not to publish such regulations or lay them before Parliament for scrutiny and debate. The rules relating to appeals and the procedures of the attendance panels could, de facto, be decided by Executive action. On matters that are clearly judicial or quasi judicial, there should be clear rules that are scrutinised by the House in some form. The amendment replaces the word “may” with “must” and I hope it receives the Minister’s support.

Jim Knight: I shall try to be brief, in the hope that that does not cause me any trouble. In essence, the argument that I would put to the hon. Gentleman is that it is almost without precedent for the Government to put into law a requirement that the Secretary of State “must” use regulations. It is standard practices that regulations “may” be made by the Secretary of State. I can reassure the hon. Gentleman that it is absolutely the Government’s policy and intention to issue regulations in this case. Changing the text to make the Secretary of State responsible for the regulations would make no difference to the current situation in which he is clearly responsible and will make the regulations.

Nick Gibb: Given that explicit and firm assurance that the Secretary of State will make those regulations, I beg to ask leave to withdraw the amendment.

Amendment by leave, withdrawn.

Clause 48 ordered to stand part of the Bill.

Clause 49

Alternative ways of working

Question proposed,That the clause stand part of the Bill.

John Hayes: Given the lateness of the hour, 4 o’clock having come and gone, I can almost hear you wondering, Mr. Bercow, whether there is “honey still for tea”, or whether we have missed tea altogether. Notwithstanding the time, we will not be deflected from our determination to examine the matters with proper diligence.
Clause 49 raises an important issue. The explanatory notes say:
“For the purposes of Part 1, clause 49 enables regulations to state who is to be treated as the employer in relation to ways of working prescribed under clause 5, and to modify provisions in their application to these prescribed ways of working, to reflect different circumstances. One effect of this clause is that persons who are not normally regarded as employers (for example, the person in charge of a young person’s voluntary work)”
would be liable to the same treatment as a more conventional employer, even though they might not be fitted or suited to deal with matters in an equivalent way. My probing series of comments is therefore designed to establish the circumstances in which organisations might be affected in an way that would not be equitable.

Jim Knight: When we come to apply the duties on employers in chapter 3 to ways of working where there is no contract of employment, we might need to make some modifications to suit particular circumstances, so that everyone is clear about what is expected. The clause allows us to make regulations to modify the provisions in that way, and the House will have the opportunity to scrutinise the regulations when they are subjected to the affirmative procedure, which the hon. Member for South Holland and The Deepings so loves.
Many young people want to start working and earning money at 16, and some of them want to do so full-time. I recognise that they can gain extremely valuable skills, knowledge and experience from the world of work, but we do not believe that it is acceptable for them to leave formal learning altogether and go into casual low-skilled work with no opportunity for learning or progression. Participating in education or training part-time while working will enable them to have their learning accredited. Their achievements will be recognised and it will be easier for them to change direction or to progress in their careers. Volunteering and self-employment are valuable experiences and should count as working for those purposes. Clause 5 enables us to make regulations to allow for that, and young people occupied in those ways for more than 20 hours a week should only be required to participate in learning part-time, in the same way as those employed under a contract of employment. The regulations under the clause would allow us to make that clear. I hope that that helps the hon. Gentleman.

Clause 49 ordered to stand part of the Bill.

Clause 50

Crown employment

Nick Gibb: I beg to move amendment No. 90, in clause 50, page 27, line 10, leave out ‘persons working in either of those ways’ and insert
‘service as a member of the armed forces of the Crown’.
Clause 50 deals with Crown employment and how Crown employees are treated in relation to the duties in the Bill. Amendment No. 90 is a probing amendment, designed to ascertain why there are regulations that institute exceptions and special rules for civil servants that do not apply to 16 and 17-year-olds in other employment. I understand why we need special arrangements for those serving in the armed forces. The amendment has therefore been drafted to keep the regulation-making powers in place as far as service as a member of the armed forces is concerned, but to take out reference to Crown employment. A simple explanation from the Minister would be helpful.

Jim Knight: We need the power to modify the provisions of chapter 1 in relation to Crown employment. As the hon. Member for Bognor Regis and Littlehampton said, those in Crown employment are essentially civil servants, and there are various people who have been hugely helpful to us in our deliberations who would count, and we must look after that valuable body of employees. There is some doubt as to whether, as a matter of law, Crown employees such as civil servants in this valuable central Government work, are under a contract of employment and therefore included in references to working in this way. We do, of course, want this kind of work to count for the purposes of the duty to participate. The clause makes that clear, and it removes the legal doubt about the status of Crown employees. However, the definition of normal weekly working hours in clause 5 needs to be modified in relation to Crown employees, as they do not have a contract of employment. Regulations under subsection (2) will enable us to do so, and it is appropriate that this kind of technical detail is dealt with in secondary legislation. I therefore urge the hon. Gentleman to withdraw his amendment accordingly.

Nick Gibb: I was intrigued by the Minister’s praise of civil servants—I wonder who drafted that particular speaking note?

Jim Knight: I would want it to be placed on record that those words were not drafted by anybody else: they came spontaneously to my mind.

Nick Gibb: I am delighted to hear it. I was interested in what the Minister had to say. He will correct me if I interpreted him incorrectly, but it appears that the purpose of the clause so far as Crown employment is concerned is to ensure that Crown employees are included in the duty, as opposed to finding a way of exempting them from the duty.
 Jim Knight indicated assent.

Nick Gibb: I see the Minister nodding. I am happy with his explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 ordered to stand Part of the Bill.

Clause 51

Parliamentary staff

John Hayes: I beg to move amendment No. 91, in clause 51, page 27, line 33, leave out subsection (2).
Clause 51 sets out the way in which parliamentary staff are to be treated in relation to part 1 of the Bill. Clause 51 (2) states:
“Regulations may provide for Chapter 1 to have effect subject to modifications in relation to persons working in that way.”
Amendment No. 91 is essentially a probing amendment, intended to give the Government the opportunity to explain why parliamentary staff may be treated differently, and to outline how the provisions set out in chapter 1 may be modified by regulation in respect of parliamentary staff.

Jim Knight: Much as I am hugely grateful for the work of Crown employees, we are all equally grateful for the job that the House of Commons staff do for us. The Committee may be interested to learn, however, that the House of Commons staff, and indeed, those employed in the other place, do not, as a matter of law, work under a contract of employment and are not therefore automatically included in references to working in that way, bizarre as that may sound.
I am sure that the Committee will agree that we want working in the House to count as employment for the purpose of the duty to participate, and the clause makes that clear. Furthermore, the definition of normal weekly working hours in clause 5 needs to be modified in relation to the staff of this House, as they do not work under a contract of employment. Regulations under subsection (2) will enable us to do so, and it is appropriate that such technical detail is dealt with in secondary legislation, which will be laid before the House. I therefore ask the hon. Member for South Holland and The Deepings to withdraw his amendment.

John Hayes: Given the Minister’s immensely persuasive comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 ordered to stand part of the Bill.

Clause 52

Financial penalties

Nick Gibb: I beg to move amendment No. 92, in clause 52, page 28, line 18, leave out from beginning to ‘must’ in line 19.

John Bercow: With this it will be convenient to discuss amendment No. 100, in clause 52, page 28, line 20, leave out ‘to’ and insert ‘made by’.

Nick Gibb: Given that this is likely to be my last contribution to the debate under your chairmanship, Mr. Bercow, may I say how fair, objective and precise you have been in chairing our proceedings and how grateful we are for the time that you have devoted to them? We wish you all the best in your future endeavours in the days ahead.

John Bercow: Oh dear.

Nick Gibb: Indeed—the weeks, months and years ahead. I meant your remaining time in Committee, Mr. Bercow.
The purpose of the amendments is to remove a conflict of interest that would be created if the local authority received the proceeds of any financial penalties rather than the Treasury direct. The old adage of administrative law is that he who levies the fine should not benefit from the proceeds of that fine. Alas, it is an adage that has been honoured more in the breach than in observance in recent decades. If a body benefits from the proceeds of its own fines and penalties, there is an inbuilt incentive and pressure to impose those penalties that removes impartiality from the process. It makes it less objective and opens up the authority to accusations that it is simply revenue- raising.
The classic example is parking fines. When the power to levy parking fines was transferred to local authorities, together with the proceeds, we started to see parking attendants patrolling quiet residential streets at 8.31 am waiting to catch residents who had not moved cars that had been left overnight on parking meters. Westminster council raised £38 million through parking fines that way last year. I do not contend that penalty notices under the Bill will be issued solely for revenue-raising purposes or that they will raise hundreds of thousands of pounds—or even millions—for local authorities. I am just arguing that, as a matter of principle, all fines should be remitted directly to the Treasury with no re-remittance back to the body that levied them in the first place. It is an important principle that Governments of both parties have ignored during the past 20 years to the chagrin of the hard-pressed public.

John Bercow: I am very grateful to the hon. Gentleman for his generous remarks.

Oliver Heald: I support my hon. Friend’s amendment. Those of us on the Back Benches, too, are grateful for the way in which you have allowed us to intervene, Mr. Bercow, and to take part in the proceedings even when we were a bit lengthy. It might be of interest to you that the subtitle of William Morris’s book, “News from Nowhere”, to which my hon. Friend the Member for South Holland and The Deepings referred is what you are about to enjoy—“An Epoch of Rest”.

Jim Knight: It would be wrong of me not to take this opportunity to thank you for your stewardship of the Committee over the past few weeks, Mr. Bercow. I, too, hope that you have a restful time next week while we wrestle with the rest of the Bill. However, if you miss our musings on Proust, liberalism and William Morris, your presence in the Public Gallery to observe our proceedings would be more than welcome.
Amendment No. 92 would require all money received by local authorities as a result of penalty notices to be paid directly to the Secretary of State and could risk funding being diverted from other local authority services to cover the cost of penalty notices. The effect of amendment No. 100 would be to leave it unclear to whom any money received by a local authority and not used for the purpose of administering the penalty notice should be paid, but I accept that it is a probing amendment that sets out a few things and asks a few questions.
Should the financial penalties that we have provided for under the Bill ever be used, it is important that the money received from them can be used to cover the costs of administering the notices, so that funding is not diverted from other services to cover those costs. It is usual practice for money received by the Government from the payment of fines to be used in that way. It is also important that money received from financial penalties can be used only for the purposes of administering the process, and not used by local authorities in the way in which the hon. Member for Bognor Regis and Littlehampton described. That is why we will specify in regulations that the only function for which the money can be used is the administering of penalty notices themselves. I hope that the hon. Gentleman will welcome and celebrate those regulations when they are published, perhaps through an early-day motion. The clause, as drafted, therefore requires any money not used for that purpose to be paid directly to the Secretary of State in accordance with regulations. That is entirely consistent with the way in which unused funds from penalty notices issued in respect of unauthorised absence from school have been handled since 2004. I therefore urge the hon. Gentleman to withdraw his amendment.

Nick Gibb: On the basis of those assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 ordered to stand part of the Bill.

Clause 53 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Michael Foster.]

Adjourned accordingly at twenty minutes to Five o’clock till Tuesday 26 February at half-past Ten o’clock.